No break for Muffin Break: a lesson in the employment of children

The Victorian Wage Inspectorate has prosecuted its eighth child employment case in 18 months against a Muffin Break franchise based in Southland, Melbourne. The franchise, Rianshi Pty Ltd trading as Muffin Break, was recently lumped with 360 charges by the Inspectorate for individual contraventions of the Child Employment Act (Vic) 2003 (Act).

These charges have landed following the Fair Work Ombudsman’s requirement of parent company Foodco to backpay over $26,000 in 2019 to 164 underpaid Muffin Break and Jamaica Blue staff.

The Inspectorate has alleged the following contraventions by the Southland Muffin Break:

• Employment of three children under the age of 15 without a permit on 111 occasions between March and October 2022;
• Failure to ensure children were supervised by someone with Working With Children credentials;
• Failure to give a break to children of at least 30 minutes after every three hours of work;
• Employment of children for longer than three hours per day during a school term; and
• Employment of children for longer than six hours per day during school holidays.

The matter was listed for mention in the Melbourne Magistrate’s Court for hearing on 2 August 2023 – a decision is yet to be released.­­­

In circumstances where each contravention of its obligations under the Act may result in a maximum of 100 penalty units ($18,429), this matter serves as a stark reminder to employers of children under the age of 15 to take ­­­their obligations seriously.

So, what are your obligations under the law?

Such employers have specific obligations under the Act, including but not limited to the obligation to obtain a permit from the Inspectorate before the employment of a child commences, and the obligation to ensure that a child is supervised at all times by a person who has a current Working With Children clearance.

It’s important to note that the obligations for employers of children aren’t the same as those that exist under the Fair Work Act (Cth) 2009 for the engagement of adult workers. The Act itself provides for the following purposes under section 1:

1. the protection of 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;
2. allowing children under the age of 15 years to work in family businesses without a permit;
3. setting out general conditions of employment for children under the age of 15 years; and
4. prohibiting the employment of children under the age of 15 years in certain kinds of work.

As a starting point, employers of children under the Act must be aware of their obligations.

Further steps that employers of children may take include explaining their practices to any employees who are children, providing a mentoring system (where resources allow), setting clear role expectations, providing appropriate support considering any additional commitments, such as school, and providing resources to help any employees who are children understand the way the workplace works.