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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-03-10 Daily Xml
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CHILD EMPLOYMENT BILL

Introduction and First Reading

The Hon. B.V. FINNIGAN (Minister for Industrial Relations, Minister for State/Local Government Relations, Minister for Gambling) (15:26): Obtained leave and introduced a bill for an act to provide for the care and protection of children working in South Australia, and for other purposes. Read a first time.

Second Reading

The Hon. B.V. FINNIGAN (Minister for Industrial Relations, Minister for State/Local Government Relations, Minister for Gambling) (15:27): I move:

That this bill be now read a second time.

The Rann government is committed to ensuring safe, fair and productive working lives for all South Australians. Young workers under the age of 18 years are among our most vulnerable workers and this bill, which introduces stand-alone child employment legislation, will enhance their protection in the workforce by filling gaps where existing laws have proven inadequate. The Child Employment Bill 2011 is the culmination of several years of consultation and development and gives effect to this government's longstanding commitment to promote greater protection for South Australian children at work.

Despite South Australia's referral of certain industrial relations powers to the commonwealth from 1 January 2010, the regulation of child employment remains within the state's jurisdiction. This means that the proposed legislation will apply to all employers in South Australia, whether they are in the private sector, public sector or local government. I should stress that the commonwealth industrial relations laws make it clear that child labour laws made by a state or territory jurisdiction cannot deal with matters that are provided for in the national employment standards or that may be included in a modern award or agreement, for example, rates of pay.

This bill will not duplicate general industrial regulation already provided by industrial awards and agreements, statutory minimum employment standards, unfair dismissal laws, occupational health and safety statutes, workers compensation laws and anti-discrimination legislation. ABS data demonstrates that a large number of children and young people in South Australia are participating in the workforce. Recent data indicates that close to 50,000 young workers aged 15 to 19 are presently employed, with the majority employed in the retail, accommodation and food service industry sectors.

More remarkably, data from 2006 showed that over 12,000 children aged five to 14 had performed work for some form of reward in the previous 12 months. These figures include work in a family business or farm but exclude domestic chores. There are no exact figures for total persons employed under the age of 18. However, the ABS data highlights the existence of significant numbers of children in the South Australian workforce. The Child Employment Bill 2011 does not aim to restrict the employment of young workers and is principally concerned with protecting children against potential exploitation and harm at work.

It will achieve this by complementing existing workplace legislation and providing clear parameters for employers, children and their parents through the bill's regulation and code of practice making powers. These laws will ultimately strike an appropriate balance between the natural interest and inclination of young people to seek employment (particularly part-time and casual work) whilst recognising the importance of their schooling, education and social development.

This bill has been developed after considerable consultation over a period of two years. Preliminary consultation commenced in September 2008 with the release of a discussion paper. Comments were sought from key stakeholders and the general public, and most feedback supported the need for the greater protection of children in South Australian workplaces.

During 2009, a draft bill was developed and has since been subject to further consultation with the Industrial Relations Advisory Committee, a statutory committee established pursuant to the state's Fair Work Act 1994, whose membership includes peak bodies such as Business SA, SA Unions, and other major employer and employee associations. Recent consultation has also occurred by way of a direct mail-out to more than 60 key stakeholders along with the opportunity for public comment via the SafeWork SA and Youth at Work websites.

SafeWork SA has also hosted a youth forum to find out what the critical issues are for young people in the workplace. This was attended by secondary school students with workforce experience, the Young Workers Legal Service, young business representatives from the Master Builders Association and Business SA, and staff from the Office for Youth. The comments and opinions expressed at the forum will be analysed and considered for the development of any future regulations and codes.

The consultation process has highlighted business caution over too much prescription and red tape; however, there is also strong support for greater legislative guidance in the employment of children. Concerns have been addressed by providing non-prescriptive legislation that enables the creation of specific child employment provisions where they are most needed, and only after further consultation with the Industrial Relations Advisory Committee and key industry groups.

The bill laid before us is an enabling bill which contains the 'machinery' for the establishment of particular employment arrangements through regulations and industry-driven codes of practice. These regulations and codes will be developed in consultation with industry sectors, employers and employees as required in the future.

The bill defines 'child' as a person under the age of 18 years. However, future regulations and codes of practice may make different provision according to the classes of children or types of work to which they are expressed to apply. Other key features of the bill are:

clear definitions of the terms 'child', 'employer' and 'work';

application of the laws to children working as employees; working under a contract (that at common law may not be deemed to be employment) to perform work for labour only or substantially labour only; and unpaid or voluntary work;

general exclusions from the laws for contracts involving children operating their own business; performing domestic chores; acting as a carer or charity collector; working for their guardian; and work that is part of an approved learning program such as an apprenticeship, traineeship or bona fide work experience as part of the secondary, TAFE or tertiary education systems;

regulation-making powers that are generally limited to provisions that are permissible under the scope of state child employment laws that will operate in conjunction with the commonwealth's Fair Work Act 2009;

adoption of codes of practice subject to ministerial approval and parliamentary disallowance;

a clear definition of 'work in the entertainment industry' with an intent to make regulations specific to an industry that is unique in the ways children can be hired or engaged;

employers' duties provisions underpinned by the use of approved codes of practice in proceedings for an offence against the act;

enforcement through inspectors defined as those who are inspectors under the Fair Work Act 1994 (SA), with functions and powers consistent with that act;

restrictions relating to nudity;

clarification regarding the interaction of this act and the Education Act 1972 to ensure that exemptions provided under that act are recognised and that there is no duplication of potential prosecutions of employers under both pieces of legislation.

With regard to regulations and codes of practice, the government has made a commitment to our stakeholders that these will be developed through extensive and inclusive consultation and will be brought back to this place in accordance with normal protocols.

It is envisaged that further consultation on the need for regulations and specific codes of practice will occur this year with the Industrial Relations Advisory Committee, other employer and employee representatives, and those interested in youth employment generally. I commend the bill to members. I seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

Operation of the measure is to commence on a day to be fixed by proclamation.

3—Object of Act

The object of the measure is to provide for the care and protection of children working in South Australia. This is to be achieved by ensuring that children are not required to undertake work that may be harmful to their health, safety or development and that work does not adversely affect schooling.

4—Interpretation

This clause provides definitions of a number of terms used in the measure. A child is a person under the age of 18 years. An approved code of practice is a code of practice approved by the Minister. The term approved learning program is given the meaning that it has in section 75D of the Education Act 1972. Under that section, a learning program is an approved learning program if it complies with certain requirements set out in regulations and—

consists of secondary education provided under the Education Act 1972; or

counts towards, or is otherwise required for, the award of a degree, diploma or other award provided by a university declared to be a university or class of universities that is within the ambit of the definition; or

consists of technical and further education provided by a college (within the meaning of the Technical and Further Education Act 1975); or

consists of an accredited course provided by a training organisation registered under the Training and Skills Development Act 2003 or a corresponding law (other than a course or training organisation excluded from the ambit of this definition by the regulations); or

is an apprenticeship or traineeship undertaken with an employer approved as an employer who may undertake the training of an apprentice/trainee under an approved contract of training under the Training and Skills Development Act 2003; or

is a program of a class declared by the Minister by notice in the Gazette to be an approved learning program.

An employer is a person who engages a child, or arranges for a child, to perform work at the direction of the person, whether the child works for gain or reward or on a voluntary basis. A child's guardian is a parent of the child or a person who is the legal guardian of the child or has the legal custody of the child or any other person who stands in loco parentis to the child and has done so for a significant length of time.

5—Meaning of work

Work in relation to a child means, for the purposes of the Act, any of the following:

work under a contract of service;

work under a contract (whether or not the contract is a contract of service) to perform work for labour only or substantially for labour only;

work under a contract (whether or not the contract is a contract of service) to perform work, other than work where a personal services business determination is in effect for the child under section 87-60 of the Income Tax Assessment Act 1997 of the Commonwealth;

participating or assisting in a business carried on for profit (whether or not the child receives payment or other reward for the child's participation or assistance);

unpaid or voluntary work.

Work does not include—

domestic chores relating to the child's place of residence; or

acting as a carer (within the meaning of the Carers Recognition Act 2005); or

acting as a collector (unless the child is acting as a collector in prescribed circumstances); or

work that is undertaken as part of an approved learning program.

6—Application of Act

The Act is in addition to, and does not derogate from, any other Act or law. If there is an inconsistency between the Act and another Act or law, the provisions of the Child Employment Act prevail.

The Act does not apply to employment of a child by the child's guardian or employment excluded from the ambit of the Act by regulation.

Part 2—Duties relating to employment of children

7—Employers' duties

This clause requires an employer to ensure, so far as is reasonably practicable, that each child employed by the employer is not required to undertake work that may be harmful to the child's health, safety or development or that adversely affects the child's schooling. The maximum penalty for a breach of this requirement is a fine of $20,000.

Work undertaken by a child in accordance with an exemption granted under section 81A of the Education Act 1972 will not be taken to adversely affect the child's schooling.

Subclause (2) prohibits an employer from requiring or permitting a child—

to undertake prescribed work; or

to undertake work in a prescribed manner; or

to work at a time when the child is prohibited under the Act from undertaking the work; or

to work unless appropriately supervised by an adult.

Again, the maximum penalty is a fine of $20,000.

The clause includes a defence to a charge against the section. If the defendant proves that the alleged offence was not committed intentionally and did not result from a failure to take reasonable care to avoid the commission of the offence, he or she has a defence.

8—Restrictions relating to nudity etc

This clause prohibits an employer from requiring or permitting a child to work if the child is naked or the child's sexual organs or anus are visible. If the child is a female aged five or more, the employer cannot require or permit her to work if her breasts are visible. The maximum penalty is a fine of $20,000.

The prohibition does not apply to work in the entertainment industry if the child is under the age of 12 months and a guardian of the child (who is not the employer) has consented in writing to the child working in the manner required or permitted by the employer.

For the purposes of this clause, work includes work that is undertaken as part of an approved learning program.

9—Employer must provide child worker with certain information

Under this clause, if an employer is to employ a child in work of a prescribed class, the employer is required to provide the child with a written notice of the child's employment rights and obligations. The notice must be in the form, and must contain information, specified by the Minister by notice in the Gazette.

Part 3—Codes of practice

10—Codes of practice

This clause authorises the Minister to approve codes of practice that are to apply for the purposes of the Act. A code of practice may contain provisions designed to prevent harm to the health, safety or development of children undertaking specified work or work of a specified class or designed to prevent adverse effects on children's schooling. A code may also regulate children's working hours.

The Minister is required to give notice in the Gazette of—

the approval of a code of practice; or

the approval of a revision of the whole or a part of a code of practice; or

the revocation of a code of practice.

Copies of codes of practice are to be made available to the public without charge. Codes of practice, and revisions of codes of practice, are subject to disallowance by Parliament and are therefore to be laid before both Houses of Parliament.

11—Use of codes of practice in proceedings

This clause provides that if it is proved in proceedings for an offence against the Act that the defendant failed to observe a provision of an approved code of practice dealing with the matter in respect of which the offence is alleged to have been committed, the defendant is, in the absence of proof to the contrary, to be taken to have failed to exercise the standard of care required by the Act.

Part 4—Enforcement

12—Functions of inspectors

An inspector under the Fair Work Act 1994 has the following functions under the Child Employment Act 2011:

to investigate complaints of non-compliance with the Act;

to conduct audits and systematic inspections to monitor compliance with the Act;

to conduct promotional campaigns to improve the awareness of employers, guardians and children of their rights and obligations under the Act and any other Act or law relating to children working;

to do anything else that may be appropriate to encourage compliance and, if appropriate, take action to enforce compliance.

13—Powers of inspectors

This clause sets out the powers of inspectors under the Act. An inspector may, for the purposes of the Act, at any reasonable time—

enter premises where the inspector has reasonable cause to believe that a child is or has been employed; and

require an employer to produce records relating to the employment of a child; and

examine and copy or take extracts from such records or require an employer to provide a copy of any such records; and

require a person to answer, to the best of the person's knowledge, information and belief, any question relevant to the administration or enforcement of the Act.

It is an offence to hinder or obstruct an inspector or a person assisting an inspector in the exercise of a power, or to refuse or fail, without lawful excuse, to comply with a requirement of an inspector. The maximum penalty is a fine of $5,000. A person is not required to answer a question under the section if the answer would tend to incriminate him or her.

Part 5—Miscellaneous

14—Confidentiality

This clause prohibits the disclosure of information obtained in the course of carrying out functions in, or related to, the administration, operation or enforcement of the Act if the information is about the contents of records kept by an employer or about commercial or trading operations or was provided in return or in response to a request for information under the Act. The maximum penalty is a fine of $5,000. This prohibition does not apply in relation to a disclosure of a kind listed in subclause (2).

15—Proceedings for offences

A prosecution for an offence against the Act must be heard and determined by a magistrate assigned by the Governor to be an industrial magistrate.

16—No double jeopardy

If an act or omission is an offence under the Child Employment Act 2011 as well as the Education Act 1972 or the Occupational Health, Safety and Welfare Act 1986, the offender cannot be punished twice in respect of the offence.

17—Conduct by officers etc of body corporate

This clause relates to the conduct of bodies corporate. If it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show—

that an officer, director, employee or agent of the body corporate engaged in the conduct within the scope of his or her actual or apparent authority; and

that the officer, director, employee or agent had the state of mind.

For the purposes of the Act, conduct in which—

an officer, director, employee or agent of the body corporate engages within the scope of his or her actual or apparent authority; or

another person engages at the direction or with the consent or agreement (express or implied) of an officer, director, employee or agent of the body corporate, who gives the direction, consent or agreement within the scope of the actual or apparent authority,

is conduct of the body corporate.

18—Offences by body corporate

If a body corporate commits an offence against the Act, and a member of the governing body of the body corporate intentionally allowed the body corporate to engage in the conduct comprising the offence, the member commits an offence and is liable to the same penalty that could be imposed for the original offence. Prosecution and conviction of the person may occur irrespective of whether the body corporate has been prosecuted or convicted of the principal offence.

19—Regulations

This clause authorises the making of regulations. The matters about which regulations may be made include (but are not limited to) the following:

prohibiting children from undertaking prescribed work or work of a prescribed class;

prohibiting children who are of or below a specified age from undertaking a specified class of work;

regulating children's working hours;

permitting children, or children of a specified class, to undertake a specified class of work subject to prescribed conditions;

providing exemptions (which may be conditional or unconditional) from specified provisions of the Act;

providing for the keeping of records under the Act;

prescribing fees in respect of any matter under the Act and their payment, recovery or waiver;

fixing fines, not exceeding $2,500, for offences against the regulations;

providing for the facilitation of proof of the commission of offences against the regulations.

Debate adjourned on motion of Hon. Carmel Zollo.

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