In recent weeks, the minimum working age for children in South Australia (or a lack thereof) has attracted much publicity. Industries such as fast food, hospitality and retail continue to be heavily reliant on a young workforce. So, what is the status of child employment laws in Australia, and are our most vulnerable workers protected?
What is the minimum working age?
The minimum working age depends on the State or Territory the person is working in. There is no minimum working age in South Australia, which means that a child of any age may undertake paid employment. There are, however, restrictions on when a child of compulsory school age can be employed during school hours.
Children who want to work during school hours, generally need to be of minimum school leaving age or have completed the minimum required years of school. In South Australia, students aged 15 and 16 can apply for a permanent exemption from school for employment reasons. Importantly, a parent or employer could be prosecuted if they ask a child of compulsory school age to work in a way that interferes with school.
Private businesses may set their own minimum working age, whilst certain industrial awards and regulations may also restrict the type of work that a person under 18 years old can do, such as driving a forklift.
The Work Health and Safety Act 2012 (SA) (WHS law) has an indirect role in regulating the age that children can work. Although WHS law does not mandate a minimum age, there will be situations where a child will be too young to perform certain roles safely.
However, when considering WHS law obligations, exactly what is an appropriate age for a particular employee to perform their role safely could remain open to reasonable debate. This is why clarity for all employers (as to what a minimum age might be) must be considered.
The broader regulatory framework
The Fair Work Act contains clauses for "junior" employees such as for rates of pay, however, there is an express exemption for children under 18.
This means that it is left up to the states and territories to develop their own regulation. Currently only Australia Capital Territory, Queensland, Victoria, Western Australia, and New South Wales have child employment legislation. South Australia has considered child employment legislation; but it has not eventuated. Given the increasing discourse on this topic, this could well change.
In June 2023, the Commonwealth Government ratified an international treaty which sets out a framework for the minimum age a young person can start employment to work safely and without interfering with their schooling. Australia will declare a minimum age of 15 years, and children under that age can only perform light work in certain circumstances. However, this is unlikely to form part of Australia law until it is legislated by the States and Territories.
Should we introduce a minimum age?
There is little doubt that, at least for the sake of clarity and protecting vulnerable minors, fixing a minimum age for employment would be prudent and reasonable.
But should there be exceptions? Many fondly recall informal engagements like a paper route, mowing lawns or babysitting to earn pocket money in their early teens. Certain laws already recognise a "carve out" for arrangements that are arguably more domestic or familial in nature: domestic cleaning (not being covered by workers' compensation legislation) being one example.
But is it time to regulate these traditionally informal arrangements as well? Arguably, there is an even stronger impetus to recognise a formal employment relationship for younger (and more vulnerable) workers given the associated protections that arise from the employment relationship (including WHS, workers compensation and minimum entitlements).
Further, should there be a "no exceptions" minimum age? For example, in Queensland, a child under 11 is not able to perform work for any reason. And parental permission will always be relevant, but from what age? In Western Australia for example, 13 and 14-year-olds can work in retail or hospitality with parental consent.
Of course, applying a fixed age across every single workplace is not realistic. Although many commentators suggest that 14 or 15 is a reasonable age to commence work, numerous exceptions immediately come to mind: a person must ordinarily be 18 to serve alcohol, whilst children (as young as infants) can work in film and television (albeit with parental consent).
These are all important questions requiring continued discussion by employer bodies and unions (and eventually, it is hoped, by Parliament). At this point in time, although the Fair Work Ombudsman and SafeWork SA websites provide general guidance for employers wanting to employ young people, there are limited resources and agencies responsible for monitoring child employment, particularly in the context of WHS law, when "assessing risk" can be easier said than done for less sophisticated workplaces.
Conclusion and recommendations
There is little doubt that Australia (or at least South Australia) could benefit from consistent, uniform laws to help protect young people at work.
In the opinion of the writers, this could be addressed by:
- Fixing a presumptive minimum age (say, 15 years of age);
- Clarifying exceptions to the presumptive age for certain types of employment (such as being 18 for licensed premises);
- Clarifying exceptions for individual circumstances (say, 14 years of age with parental consent);
- Clarifying potential exceptions for certain industries that traditionally (and validly) engage younger workers (like Victoria where a child only needs to be 13 to work in retail); and
- Fixing a "no exceptions" minimum (say, 12 years of age).
These are indicative ages. The precise age is not just a question for lawyers, but a question for labour, education and medical experts. Even if a fixed age were agreed, younger people will vary in terms of their development and maturity. As but one example, cognitive development, resilience and/or coping mechanisms (or perhaps a lack thereof) in our younger workers could well increase the risk of psychosocial harm.
One thing is clear: somebody ought to think of the children sooner rather than later. Affording reasonable protections to our vulnerable workers must remain a paramount consideration in any discussion of labour law and related policy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.