Employing young persons during school holidays

Analysis

Employing young persons during school holidays

An employer may take the opportunity during the summer school vacation period to employ a young person, either to provide work experience or to cover a full-time employee absent on annual leave; and, if this occurs, the employer should be aware of the rules applying to the employment of young people.

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An employer may take the opportunity during the summer school vacation period to employ a young person, either to provide work experience or to cover a full-time employee absent on annual leave; and, if this occurs, the employer should be aware of the rules applying to the employment of young people.

Some employers may be reluctant to employ a young person (particularly under 16 years) because of perceived restrictions on their employment. While there is no national legislative framework, state and territory laws do regulate the employment of young persons on matters such as minimum age, when work can be performed and prohibition on certain types of work. There may also be age restrictions provided by the relevant industrial instrument, particularly in industries such as building and construction, heavy manufacturing, mining, security and hospitality.

An employer may also be approached during the school holidays by young persons requesting on-the-job work experience. These requests need to be properly managed.

State/territory child employment laws
 
‘Child labour’ laws in a state or territory are not excluded by the Fair Work Act 2009 (ie the state or territory law continues to be enforceable). Some of these laws may impose an age restriction on the performance of certain specified work. The following state/territory child labour laws are enforceable:

Australian Capital Territory: The Children and Young People Act 2008 (ACT) prohibits a person under the school-leaving age of 15 years from working, except on ‘light work’ or for a family business. An employer is required to notify the Chief Executive of the ACT Office for Children, Youth and Family Support where the light work is more than 10 hours a week. No person can be employed in work that is declared as ‘high risk employment’, unless permitted by the Chief Executive. The Regulations to the legislation provide the following examples of ‘light work’: clerical work, work as a cashier, errands, work around a private home, sport-related work, gardening, etc.

New South Wales: The Children and Young Persons (Care and Protection) (Child Employment) Regulation 2010 (NSW) allows an employer who is not the holder of an employer’s authority to employ a child (under 15 years) who is more than 10 years old and the employment is outside school hours and for no more than 10 hours per week. In the case of persons 15 years and older, there is no law restricting their employment outside of compulsory school hours.

Queensland: The Child Employment Act 2006 (Qld) regulates the employment of young persons in Queensland under the age of 16 years. The maximum hours that can be worked are 8 hours on a non-school day and 38 hours during a non-school week. Children between the ages of 11 and 13 years are not allowed to work between 6.00 pm and 6.00 am, while children aged 14 or 15 years are not allowed to work between 10.00 pm and 6.00 am. A person under 16 years is required to provide written consent on a Parent’s Consent Form.

South Australia: There is currently no general child employment law operating in this state, although a Child Employment Bill 2011 (SA) was introduced to the SA Parliament in December 2011, the Bill lapsed due to prorogation of Parliament. This Bill did not aim to restrict employment of young workers and was principally concerned with protecting children against potential exploitation and harm at work, instead of prescribing restrictive hours. Other laws restrict the employment of young persons in certain specific industries, such as working in an underground mining operation.

Victoria: The Child Employment Act 2003 (Vic) regulates the employment of persons under 15 years of age in this state. There is a minimum age of 13 years for employment generally, except for work in a family business or the entertainment industry. Children can be employed for a maximum of 6 hours a day and 30 hours a week during school holidays, and can only work between 6.00 am and 9.00 pm and must receive a 30-minute break every 3 hours. Before employing any person under 15 years, an employer is required to ensure that a Child Employment Permit has been granted. Those people directly supervising children in the workplace need a Working with Children check.

Western Australia: The Children and Community Services Act 2004 (WA) provides that children must be at least 15 years of age to be employed; however, some exemptions allow for employment of children under 15 years of age:
  • Children of any age: may work as part of a school program; in a family business, trade or occupation carried out by a parent or a relative of the child; in a not-for-profit organisation or situation; or in a dramatic or musical performance or other form on entertainment or in making an advertisement.
  • Children aged at least 10 years and younger than 13 years: may be employed to deliver newspapers, pamphlets or advertising material, as long as it is between the hours of 6.00 am and 7.00 pm; it is outside school hours, and the child is accompanied by a parent or adult whom the child’s parent has given written permission to accompany the child.
  • Children aged at least 13 years and less than 15 years: may be employed between 6.00 am and 10.00 pm (but not during school hours) in the following work: delivering newspapers, pamphlets, or advertising material; working in a shop, retail outlet or restaurant; or collecting shopping trolleys from a shop or retail outlet, including adjacent areas.
Work during school holidays
 
An employer is able to employ a young person, subject to the relevant state or territory child employment law and the relevant state or territory education law.

Any person below the minimum school leaving age (as determined by the relevant state or territory education law) is precluded from accepting employment that would prevent their attendance when school is open for the child’s instruction or participation in school activities, unless that person is participating in a school-based apprenticeship or school-based traineeship, or an accredited work-experience program arranged through the participating educational institution.

Industrial instruments
 
Most industrial instruments do not place a restriction on the age at which an employee may be employed; however, certain classes of work (eg dangerous or arduous work) may be limited by the employee’s age. For example, work on dangerous machinery or late-night work may be prohibited if a person is under 18 years of age.

Age restrictions may also apply due to liquor or gambling licence requirements in a particular workplace. Reference should be made to the applicable industrial instrument to determine whether any restrictions apply to the employment of young persons.

A modern award which covers occupations that are semi-skilled or unskilled in nature may not prescribe junior rates of pay. In this case, a person is paid the appropriate adult rate of pay regardless of their age. Modern awards that do not provide junior rates include, for example:
Reference should be made to the applicable industrial instrument to determine the appropriate junior rate of pay (where provided). 

Work experience
 
An employer may be approached by a young person requesting unpaid work experience during the summer school holidays to enhance their prospects of obtaining employment once their secondary school studies have been completed. The employer should approach any request for unpaid work with caution.

Generally, unpaid work experience is an arrangement between an employer and an educational institution to allow a student to observe and undertake on-the-job experience without pay. As soon as productive work takes place, the person may be deemed an employee and liable to payment at the appropriate minimum wage and conditions of employment.

Whether someone is a bona fide work experience person will depend on a number of factors:
  • the degree of control of the person’s activities (set start and finish time)
  • statements made between the parties
  • whether the person performs work to the company’s advantage.
Proof of age
 
Under many industrial instruments, the minimum wage is determined by the junior’s age. An employer should take all reasonable care when identifying the age of a young person. This check should be done during the recruitment process, by requiring the production of a birth certificate, statutory declaration or other proof of age (eg passport or driver licence). An employer who fails to pay the correct age owing to a misstatement of age by an employee usually cannot use this as a defence in proceedings for breach of the relevant minimum wage rate under the applicable industrial instrument, unless the employer can clearly show that reasonable measures were taken to verify the employee’s statement.

Workplace health and safety
 
Under the relevant state or territory WHS/OHS legislation, a young person is required to receive the same workplace induction as other workers. In fact, the younger the person, the greater the responsibility on the employer to ensure the employee understands the necessary safety procedures in the workplace (eg use of safety gear, use of machinery and equipment and evacuation procedures), because a young person may have little exposure to the dangers of some workplaces.

Christmas school holidays 2012–13 — each state and territory
 
The following dates are the commencing and finishing of school holidays throughout Australia for the summer vacation 2012–13 (dates are inclusive):
  • Australian Capital Territory: Saturday 22 December 2012 — Thursday, 31 January 2013
  • New South Wales: Friday 14 December 2012 — Monday, 28 January 2013
  • Northern Territory: Saturday 22 December 2012 — Monday, 28 January 2013
  • Queensland: Saturday 15 December 2012 — Monday, 28 January 2013
  • South Australia: Saturday 15 December 2012 — Monday, 28 January 2013
  • Tasmania: Friday 21 December 2012 — Sunday, 3 February 2013
  • Victoria: Saturday 22 December 2012 — Tuesday, 29 January 2013
  • Western Australia: Thursday 20 December 2012 — Sunday, 3 February 2013

 

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