Rights & Responsibilities

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New South Wales Child Labour Laws

Background

·          In New South Wales there are approximately 146,000 children aged 12-16 years (OIR 2005), and 93,600 15-17 year olds (ABS 2006), formally employed, of whom 80 percent work on a part-time or casual basis.

·         The Young People and Work Survey commissioned by the Office of Industrial Relations in 2005 found that young people are particularly vulnerable in the workplace, receiving little formal information from their employer about their job:

o       52 percent of survey respondents did not know whether they were covered by an award, a collective agreement or an individual agreement;

o       45.8 percent had not received any written information from their employer about pay, hours of work or occupational health and safety at the time they were recruited

o       25.8 percent had not received a pay slip with each pay.

o       Lack of knowledge about their employment status or rights made children vulnerable to exploitation by employers who were not complying with existing legislation to protect young workers.   

·         The Young People and Work Survey also found 20 percent of children commence work before 7am and around 50 percent conclude work after 7pm, indicating limited opportunity to increase their hours of work. Extending or increasing the unpredictability of children's work complicates coordination of their transport needs with their parents' schedules, and the family's schedule for meals and time with other family members.

·          A survey by the Commonwealth Employment Advocate(now the Workplace Authority) showed that:

·          every AWA introduced since the commencement of Work Choices had traded away at least one protected award condition

o       16 per cent of AWAs had traded away all protected award conditions. (Office of the Employment Advocate response to question on notice at Senate Employment and Workplace Relations Committee Estimates Hearing, Hansard, 29 May 2006, pp 86-102)

·          Work Choices also allowed the removal of other protections and conditions that young workers were previously guaranteed, including meal allowances, training leave and allowances, and the no disadvantage test for agreements.

     This is not a strategy that will encourage young people to participate in the labour market or to undertake traineeships and apprenticeships. This is not a strategy that will address skill shortages.

·           Under the federal laws, junior employees are exempt from the federal minimum wage, and there is no statutory obligation on the AFPC to set a special minimum wage for junior employees. There is also no guarantee that junior award rates derived from state awards will not be removed, reduced or frozen once rationalised by the federal Award Review Taskforce into Australian Pay and Classification Scales. By contrast, the vast majority of New South Wales common rule awards include junior rates of pay which would be applicable under the proposed legislation.

·           Without action, children's employment experience under Work Choices is likely mirror that experienced in New Zealand under the Employment Contracts Act. Students' and part-time workers' incomes, particularly in the supermarket sector, were the first to exhibit wide-scale decline from the loss of penalty rates. Across New Zealand, median incomes of 15-25 year olds fell from NZ$14,700 in 1986 to NZ$8,100 in 1996.

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The Industrial Relations (Child Employment) Act 2006

·           The New South Wales Government introduced stand alone child labour legislation to address concerns about the possible exploitation of young workers.

·           While young workers undertake a variety of work in New South Wales, children are concentrated in the retail trade, accommodation, café and restaurant industries. About one third of young people work in hospitality, and another third work in retail. The relevant state common rule awards for these industries acknowledge the high levels of young people employed by providing for junior rates of pay.

·           To support the working conditions of young workers and to avoid exploitative practices, young workers need the protection of fair and reasonable – and legally enforceable - minimum work entitlements such as those delivered through the state's award system and legislative framework.

·           Similarly, the status quo will be maintained for young workers who are apprentices or trainees. Where state awards and state legislation (including the Apprenticeship and Traineeship Act 2001 and orders made under that Act) provide pay and conditions for apprentices or trainees, these will continue to be the minimum which must be provided to those children.

The legislation applies to all workers under 18 years of age working in NSW including those employers under the federal industrial relations system.

·           The state has jurisdiction to make child labour laws. This legislation is not overridden by federal laws as laws made by a state in relation to 'child labour' are a non-excluded matter (s16(3)(e)).

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·           The legislation will:

o       use the well-accepted definition of 'child' as a person under the age of 18 years. This is the definition used by the International Labour Organisation and is the meaning that generally applies in state laws;

o       require an employer of an employee under 18 years of age to provide employment terms and conditions at least equivalent to those applying under relevant New South Wales awards and legislation;

o       allow employers and young workers to apply the NSW award provisions flexibly, provided the arrangements do not constitute a net disadvantage when measured against the award and legislative conditions;

o       empower industrial inspectors to enforce these requirements as part of compliance campaigns and in response to complaints as is currently the case for other employees within the New South Wales system; and

o       where an employer or the young worker does not agree with an industrial inspector's decision as to whether or not the child is being disadvantaged by their employment arrangements, the legislation will empower the Industrial Relations Commission to make a binding determination.  

·           The legislation will not:

o       prescribe the type of instrument under which a young worker is to be engaged, only the minimum employment conditions;

o       require an approval mechanism, registration system, or any other additional regulatory burden on employers that would act as a disincentive to employ young people;

o       require parental consent to the employment of young workers; and

o       empower unions to investigate employment records. Compliance powers will only be exercisable by industrial inspectors.

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 Additional information

·           Where an employer, a young worker or their parent or guardian is concerned about whether the correct pay and conditions are being provided, they will be able to use the web or telephone to contact the Fair Go Advisory Service for further information.

·           If it seems likely that the there has been an underpayment or the young worker is being disadvantaged as against the award standard, a complaint may be made and an industrial inspector will assist in resolving the matter.

·           Industrial inspectors will monitor compliance with the new law in the course of their usual compliance activities, which include visiting workplaces to inform employers of their obligations and checking that those obligations are being observed.

·           Depending upon the commencement date of the legislation, a specific education and compliance campaign will be ready for the December/January period, a peak time for young workers' employment, as many young people seek holiday work.