Update: Who qualifies for childcare permits?

Earlier today (Thursday 6 August), the Victorian Government issued the Permitted Worker Permit Scheme and Access to Onsite Childcare/Kindergarten Permit Scheme Directions (Directions).

Clause 13 of the Directions requires that an employer must issue an employee with an Access to Onsite Childcare/Kindergarten Permit if:

• the employer is a Permitted Employer (i.e. those operating a Permitted Work Premises); and
• the employer conducts a Permitted Service; and
• the employee has attested that their child and/or dependant cannot otherwise be cared for during work hours by the employee or another responsible adult in the premises where they ordinarily reside.

The terms Permitted Work Premises and Permitted Services are both defined by reference to a table published by the Victorian Government (n.b. the format and some content has changed throughout the day), which sets out the types of work that may be performed on-site.

This obligation to issue a permit is the same whether the employee works on-site or at home (although the form used is different – you can access the childcare permit forms here).

As such, it appears the effect of the Directions is that all employees of a Permitted Employer who is conducting a Permitted Service are entitled to a permit, subject to attesting that they are unable to care for their child during work hours. Neither the Directions nor the permit forms require there to be any particular nexus between an employee's duties and the Permitted Services. Rather, the only relevant question is whether the employer is a Permitted Employer who is conducting a Permitted Service. While there are some ambiguities and inconsistencies between the Directions and other health directions which interact with them, in our view this is the best interpretation.

It is unclear if the scheme is intended to operate in such a broad fashion. Statements in press releases and other guidance materials suggested that workers who could access childcare might need to be directly engaged in performing Permitted Services. However, this is not the effect of the Directions, which are the relevant legal instrument.

Other noteworthy aspects of the Directions include:

• Employees that are not employed by a Permitted Employer will not be able to obtain a childcare permit unless they are exempt.

• The following employees are exempt from being required to obtain a childcare permit provided they have appropriate personal identification:

• all Victoria Police employees, Australian Defence 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.

• Independent contractors and sole traders may issue themselves with a childcare permit if they fall into one of the Permitted Employer categories.

• A person who is a diagnosed person or a close contact is not permitted to hold a childcare permit, regardless of whether they are employed by a Permitted Employer.

In relation to in-home childcare, the Government has issued guidance that "permitted workers" (n.b. this term is not defined, but would appear to refer to workers who have been issued a permit under the Directions) may continue existing arrangements for in-home care (e.g. babysitting or nannying arrangements). They have also said that new arrangements are not permitted.

We will continue to provide further updates on this issue as new information comes to light.

Authors: Will Spargo, Partner; Abbey Lay, Lawyer; Molly McLinden, Graduate.

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