The TTIA’s Brian Beecroft highlights the importance of employers being aware of their responsibilities when employing young people, especially for holiday periods.
An employer may take the opportunity during the summer school holiday period to employ a young person, either to provide work experience or to cover a full-time employee absent on annual leave. 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 of certain types of work. There may also be age restrictions provided by the relevant industrial instrument, particularly in hospitality.
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.
Work during school holidays
An employer may also be approached during the school holidays by young persons requesting on-the-job experience. These requests need to be properly managed.
An employer is able to employ a young person, subject to 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 schoolbased apprenticeship or school-based traineeship, or an accredited workexperience 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.
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:
• Building and Construction General On- Site Award 2010
• Cleaning Services Award 2010 (except trolley-collecting contractors)
• Market and Social Research Award 2010, and
• Quarrying Award 2010. 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 education 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 workexperience 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, and
• 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. The 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 proof of age (eg. a passport or driving licence). An employer who fails to pay the correct wage 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.
Here to help
TTIA has a fully functioning in-house WHS unit which is there to support TTIA Tree Contractor Members nationally. We have the long-term experience in the timber-products industry and proven record both in safety management, documentation, training and legal resources. Should you require a WHS audit of your workplace, please contact Ken Hocking on 0418 280 335 or the TTIA Office on (02) 9264 0011.
If you are not a TTIA member and need assistance in developing policy in relation to these issues, or require further information, TTIA is ready to assist. Phone the TTIA office on (02) 9264 0011, email ttia@ttia.asn.au, or log on to ttia.asn.au for information on becoming a member.
