Won’t somebody think of the children! A minimum working age for children. – Human Rights

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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.