Child employment — federal law versus state and territory law
Source: Paul Munro, IR Consultant
Date: 23/09/08
A summary of child protection laws in each state and territory is provided as a timely reminder of the rules surrounding the employment of children.
WorkplaceInfo has had a spate of enquiries from subscribers with employees covered by a workplace agreement (both individual and collective) regarding the relationship between the terms of the agreement under the Workplace Relations Act (Cwlth) and the respective state or territory child labour laws that may provide minimum employment conditions or a mechanism that protects a child’s pre-existing employment conditions.
Federal and state laws can apply
In a number of instances, the employer has been successfully sued by the relevant state government authority for underpayment of wages because of a misunderstanding between the application of federal and state child labour law.
This article refers to the relevant child labour legislation in each state and territory and identifies the provisions that impact on an employer operating under the federal workplace relations system.
Scope of WorkChoices
The introduction of the WorkChoices system meant an employee of an incorporated employer would be subject to federal laws, including previously award-covered employees, agreement-covered employees and non-award employees.
There are also other minimum employment conditions provided under the Workplace Relations Act that applied to all employees, such as parental leave and minimum periods of notice of termination to be given by an employer to an employee.
Certain state and territory laws not excluded
However, the Workplace Relations Act is not intended to exclude the operation of certain state and territory laws, including ‘child labour’ laws (s16(3)(e)). Subsequent to the introduction of WorkChoices, some state and territory governments enacted ‘child labour’ legislation to circumvent WorkChoices with respect to the minimum conditions of employment for young persons employed within that state. In some jurisdictions, child labour laws provide for the continued operation of state-based laws where more beneficial than the Workplace Relations Act, including wage rates and providing young persons with access to the relevant state unfair dismissal law.
Definition of 'child'
Generally, a child is defined by state and territory child labour legislation to mean any person who is (at least)under the age of 18 years, although this is subject to the relevant state or territory statute.
Child labour laws
Some states and territories have laws that could be described specifically as ‘child labour’ laws, which usually place restrictions on certain types of work performed by young persons, times when a young person is prohibited from working and prohibition from employing young persons below a specified age. Such laws are normally based on principles similar to occupational health and safety laws. However, some state laws go beyond this principle and enforce state-based employment conditions on the employment of young people.
The following is a brief summary of the child employment laws for those states that have legislated child labour laws.
New South Wales
Industrial Relations (Child Employment) Act 2006(NSW): The Act requires an employer of a person under 18 years to provide employment terms and conditions at least equivalent to those applying under the comparable NSW award and industrial legislation for any agreement or other arrangement made under the Workplace Relations Act entered into from 27 March 2006.
This comparison is applied under the ‘no net detriment’ principle as determined by the NSW Industrial Relations Commission. An important point to note for employers in New South Wales is where a comparable NSW state award prescribes a relevant junior rate of pay that is greater than the APCS, the state award rate of pay will prevail. This provision has resulted in a number of successful underpayment of wages claims in this regard.
The Act also applies to incorporated employers in New South Wales who have dismissed a young person under 18 years since 24 October 2006, regardless of the number of employees employed by the employer.
Employers must provide young persons with a pay slip, which displays the comparable state award. The employer must also keep detailed records of the child, their employment status, remuneration and hours. These records must be kept for at least six years. There is no requirement for parental consent to give permission for a young person to commence employment.
The NSW Office of Industrial Relations has responsibility for enforcement and ensuring compliance with the Act.
Victoria
Child Employment Act 2003(Vic):This Act regulates the employment of children under the age of 15 years.
There is a minimum age of 13 for employment generally, although there is no minimum age regarding employment in a family business or in the entertainment industry. However, there is a minimum age of 11 for children delivering newspapers and advertising material or making deliveries for a registered pharmacist.
Hours of work are regulated under the Act. Children can be employed for a maximum of three hours per day and twelve hours per week during school term, and a maximum of six hours per day and 30 hours per week during school holidays. These hours are inclusive of rest breaks.
Children can only be employed between 6.00am and 9.00pm and must receive a 30-minute break every three hours. Children are only permitted to perform light work. Light work is defined as work that is not likely to be harmful to a child’s health, safety or moral and material welfare. Before employing a child under 15 years, an employer is required to ensure that a Child Employment Permit has been granted.
Queensland
Child Employment Act 2006(Qld):The Act became operative from 1 July 2006 and states that an incorporated employer of a child under 18 years who is employed under a federal workplace agreement (ITEA or collective) must ensure the agreement or arrangement under which the child is employed does not disadvantage the child in relation to the child’s employment conditions when compared with the comparable Qld state award or the minimum conditions provided under other state legislation (Industrial Relations Act 1999 (Qld)).
This means that where a comparable Qld state award prescribes a relevant junior wage rate greater than the relevant APCS wage rate, the state award wage rate will prevail. The Act also allows a person under 18 years access to the state unfair dismissal laws through the Qld Industrial Relations Commission, regardless of the number of employees employed by the employer.
Regulations to the Act stipulate restrictions and exemptions in regards to the minimum age of employment, maximum hours of work, shifts, work breaks, prohibited hours and supervision of a ‘school aged child’, ie a child under 16 years and required to be enrolled at school. Before employment can occur, the child must have authority from the parents to work. Different rules apply to the entertainment industry in Queensland.
South Australia
The SA Government issued a discussion paper in August 2008 regarding the proposed introduction of child employment legislation for South Australia that is intended to provide safety net protections for persons under 18 years similar to those under NSW and Qld child employment laws.
Currently, there is no specific child employment legislation, although the Fair Work Act 1994(SA) provides a mechanism whereby the SA Industrial Commission, by award, can impose restrictions on the employment of young persons under 18 years of age, such as hours of work, types of work. However, there is still some uncertainty regarding the interaction between child labour provisions in a SA award and instruments under WorkChoices.
Western Australia
Children and Community Services Act 2004(WA):Under this Act, children need to be 15 years of age to be employed in part-time, casual or holiday jobs, although there are some exceptions when younger children can be employed. Children aged between 13 and 15 years may be employed in a shop, retail outlet, restaurant, delivering newspapers or pamphlets, or collecting shopping trolleys between 6.00am and 10.00pm and if the work is outside school hours.
Children between 10 and 13 years may be employed to deliver newspapers, pamphlets or advertising material provide the work is between the hours of 6.00am and 7.00pm and outside school hours. The Industrial and Related Legislation Bill 2007 was introduced into the WA parliament last year proposing similar conditions to those contained in child employment legislation in New South Wales and Queensland; however, this Bill lapsed with the calling of the of the WA State election in August 2008.
State and territory education laws
State and territory education laws generally ensure that the employment of a school-aged person during actual school hours is prohibited unless that person is participating in a school-based apprenticeship or traineeship, or an accredited work experience program arranged through the appropriate educational institution.
Subject to the relevant state or territory child labour law, the employment of a young person during school holidays or outside school hours would not usually breach the relevant state or territory education law.
Industrial instruments
An employer employing young persons who are covered under an industrial instrument should check that instrument to ensure there are no restrictions placed on aspects of a young person’s employment. This is most likely to occur in those industrial instruments that operate in a hazardous industry, such as building and construction or mining, or an industry that deals with hazardous materials or potentially dangerous apparatus.