Thinking | 7 August 2020

Update: who is permitted to send their children to childcare under new Victorian directions?

Updated 11 August 2020

By Fay Calderone and Rhea Karunakar 

Under Victoria's current stage 4 restrictions, in a move to limit the spread of the COVID-19 pandemic, only certain people are permitted to send their children to childcare or kindergarten. Employers are required to issue permits to certain workers who cannot care for their children during work hours, including those who work from home in limited circumstances. Hefty fines apply to employers for non-compliance.

On Thursday 6 August 2020, the Victorian Government issued the Permitted Worker Permit Scheme and Access to Onsite Childcare/Kindergarten Permit Scheme Directions (the Directions) under the Public Health and Wellbeing Act 2008 (VIC). The Directions are in place until 16 August 2020, but are expected to be extended until at least 13 September 2020.

The Directions outline which workers are permitted to access on-site childcare and kindergarten (meaning early childhood education and care at a physical kindergarten or childcare premises, rather than in-home or family day care services) during the stage 4 lockdown.

Which workers are eligible to access on-site childcare and kindergarten?

There are three key questions an employer needs to answer as follows.

1. Is the business a permitted employer?

The employer must be a Permitted Employer conducting a Permitted Service. These terms appear to mean the same thing as Permitted Industries and Permitted Work Premises set out in the Victorian government’s stage 4 restrictions table.

This means employees of a Closed Work Premises not listed in the table cannot access childcare or kindergarten (unless they’re working at the Closed Work Premises for an exceptional and permitted reason, such as performing emergency maintenance) during stage 4.

2. Is the employee a permitted worker?

The employee must either be:

3. Can the child or dependant cannot be cared for during work hours?

Finally, the employee must attest that their child or dependant cannot be cared for during work hours by the employee or another responsible adult in the premises where they ordinarily reside. This is a high threshold – simply finding it challenging to care for children is not sufficient.

Can employees working from home access childcare and kindergarten?

There has been significant confusion about this question in recent days, caused by conflicting wording in the Directions and the government’s announcements. In the Directions, the only relevant questions for employees working from home who cannot care for their children is whether their employer is a Permitted Employer conducting a Permitted Service.

This means that, for example, an accountant working from home for a warehousing and transport company that continues to operate (being a Permitted Employer conducting a Permitted Service) would be eligible to access childcare if no one can care for their children while they work. In contrast, an accountant working from home for a fitness company that is a Closed Work Premises and is not permitted to operate its onsite premises during stage 4 is not eligible to access childcare.

This results in a much broader eligibility for childcare than was perhaps originally intended and communicated. Nevertheless, not all employees working from home can access childcare. The key threshold remains whether the employer is a Permitted Employer conducting a Permitted Service.

What duties do employers have?

1. Permitted Employers must issue eligible workers with an Access to Onsite Childcare/Kindergarten Permit (permit) to enable them to access childcare or kindergarten.

For Permitted Workers that perform work at a Permitted Work Premises and require access to childcare (such as tradespeople coming to work at a building site that is permitted to operate), employers must issue a Permitted Worker Permit (including childcare) form, a component of which requires the employee to attest that there is no one else in their household who can supervise their child during work hours.

For other eligible employees that are working from home and require access to childcare (such as employees of pharmacies or supermarkets), employers must issue an Access to Childcare and Kinder (Working from Home) form. that obliges employers to attest that the employee works in a Permitted Industry and the employee, to confirm that there is no one else in their household who can care for their child during work hours.

2. Permitted Employers must keep a record of all permits they have issued.
3. Permitted Employers must ensure that they only issue permits to employees that meet the criteria.
4. Permitted Employers must not issue permits to any employee with a current confirmed case of COVID-19, or who is currently a close contact of someone with a confirmed case of COVID-19.

Breaches of these duties can attract fines of up to $99,132 for businesses and up to $19,826 for individuals.

Under clause 15 of the Directions the following employees are exempt from the childcare permit requirement, provided they have appropriate personal identification:

  • all Victoria Police employees, Australian Defence Force employees, Australian Criminal Intelligence Commission employees, Australian Border Force employees and Australian Federal Police employees; or
  • Emergency service workers, which include officers and employees of:
    • Ambulance Victoria; and
    • Australian Red Cross; and
    • Bushfire Recovery Victoria; and
    • Country Fire Authority; and
    • Emergency Management Victoria; and
    • Emergency Services Telecommunications Authority; and
    • Fire Rescue Victoria; and
    • Forest Fire Management Victoria; and
    • Life Saving Victoria; and
    • Marine Search and Rescue; and
    • Victoria State Emergency Service Authority; and
    • Victorian Institute of Forensic Medicine; or
  • hospital and health workers; or
  • any class of person approved by the Chief Health Officer in writing and subject to any conditions specified by the Chief Health Officer

What happens if both parents/guardians are unable to care for children?

In households with two parents or guardians where neither can care for their children, both must meet the above criteria to be eligible to access childcare or kindergarten.

This means many of my employees now can’t access childcare – how can I support them?

Many employees may now require flexible arrangements to adequately manage and perform their employment duties while working from home and caring for children if permits cannot be issued. Employers must however cautious to ensure employees are not burning the candle at both ends and that they are not expected to work in the early hours of the morning or late into the evening to juggle the performance of their duties with care for children.  Aside from work health and safety issues this may create with burnout, employers must also be cautious of the span of hours in applicable award and not triggering overtime payments where employees are required to work outside the span.

It is recommended where employees reasonably request access to paid leave arrangements such as annual leave and long service leave that they are granted such leave where possible, including at half pay, to enable them to care for children during this period without risk to the employer.

What about independent contractors and sole traders?

Independent contractors, self-employed persons, subcontractors and sole traders who are required to work at a Permitted Work Premises or in a Permitted Industry may issue themselves with an Access to Onsite Childcare/Kindergarten Permit signed as both the employer and employee.

What about existing carers, babysitters, nannies and other arrangements?

Existing in-home arrangements with babysitters, nannies or other carers are allowed to continue if at least one parent/guardian is a Permitted Worker. However, the Stay At Home Directions state that no new in-home arrangements can be made from 6 August 2020.

This means in-home childcare arrangements cannot continue if both parents/guardians are not Permitted Workers.

The Department of Health and Human Services has also advised that only one person may visit a household for childcare purposes.

For the latest government directions, visit the Victorian Department of Health and Human Services website.

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