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SA CHILD LABOUR AWARD (DRAFT)
This is a consolidated award of the Industrial Relations Commission of South Australia published pursuant to the provisions of the Fair Work Act 1994.
Award Information
MEMBERS: Deputy President KM Bartel Commissioner MJ Doyle Commissioner DG Steel
Matter No. 5359 of 2006
Clause 1 Title
1.1 This award is known as the SA Child Labour Award 2006.
Clause 2 Arrangement
2.1 This award is arranged as follows:
Clause Number Matter
13 Access to transport 2 Arrangement 20 Availability of records 15 Breaks between shifts 27 Categories of employment 5 Commencement and Duration 6 Definitions 28 Disputes resolution process 24 Duties of employers of children 23 Employment categories 4 Exclusions 18 General breaks and rest periods 22 Information and support regarding employment matters 21 Invitation to attend premises 25 Letter of appointment 11 Minimum age 26 Minimum standards 19 Overtime 7 Prohibition of employment in certain categories of work, industry or sectors of industry 16 Prohibition of split shifts 29 Review 23 Right of entry 17 Rosters 3 Scope and Persons Bound 14 Shift arrangements 8 Special limitation on hours of employment 9 Special rest periods 10 Supervision arrangements 1 Title 12 Trial work and Probation
Clause 3 Scope and Persons Bound
3.1 This award is of general application and applies throughout South Australia.
3.2 This award is binding on all employers within South Australia.
3.3 This award is binding on all persons under the age of 18 years employed within South Australia.
3.4 The terms of this award only apply to the extent that they apply to employees under the age of 18 years.
3.5 This award is read in conjunction with any other award that applies in the workplace to the extent that the provisions in this award relate to the employment of children.
Clause 4 Exclusions
4.1 This award does not apply to employment by the child’s spouse or parent.
Clause 5 Commencement and Duration
5.1 This award came into force on {dd/mm/yyyy}, and continues in force until amended, rescinded or replaced.
Clause 6 Definitions
In this award:
‘Act’ means the Fair Work Act 1994;
‘association’ means an association, society or body formed to represent, protect or further the interests of employers or employees;
‘authorised person’ means a parent/guardian of the child, association representative, peak entity representative, industrial inspector;
‘award’ means an award made under South Australian or Commonwealth Industrial Law;
'child' means a person who has not attained the age of 18 years;
'Commission' means the Industrial Relations Commission of SA; ‘employee’ means a person employed for remuneration under a contract of employment and includes a public employee;;
‘employer’ means: for public employees, the body or person (not being a Minister) declared by regulation to be the employer of the employees; for other employees, a person who employs the employees for remuneration in an industry under a contract of employment;
‘formal education or training’ means enrolment and participation in a course of study through a school, university, TAFE, registered training organisation or other vocational education provider;
‘industrial instrument’ includes an award and an agreement made under South Australian or Commonwealth Industrial Law;
‘peak entity’ means: the South Australian Minister for Industrial Relations; and the United Trades and Labor Council of South Australia; and the South Australian Employers' Chamber of Commerce and Industry Incorporated; the Employee Ombudsman; and any other body brought within the ambit of this definition by the regulations applicable to the Fair Work Act 1994 (SA);
‘relevant advisory body’ means the industrial advice section of SafeWork SA, the OHS section of SafeWork SA, an inspector appointed under the provisions of the Fair Work Act, the Young Workers’ Legal Service, the Youth Affairs Council of South Australia, the Working Women’s Centre, an association and any peak entity;
‘school week’ means a week in which a child is attending formal education or training;
Clause 7 Prohibition of employment in certain categories of work, industry or sectors of industry
7.1 A child shall not be employed to carry loads which are unreasonably heavy for the child’s age and physical development.
7.2 A child shall not be employed to undertake other tasks which pose a health and safety risk due to the child’s age and physical development.
7.3 An assessment under clause 24.1.4 of this award will be conducted and documented where carrying loads is a task required or where other tasks may pose a health and safety risk due to the child’s age and physical development.
7.4 A child shall not be employed to perform in an indecent, obscene or pornographic way while participating in any entertainment, exhibition or the making of any advertisement.
7.5 A child shall not be employed to undertake duties (including promotional work) wearing indecent clothing or uniforms or being required to work nude or partially nude, or in transparent clothing.
7.6 A child shall not be employed in a restricted gambling area of a club, hotel, and casino.
7.7 A child shall not be employed to sell, supply, or to serve alcohol.
7.8 A child under 16 years of age shall not be employed to undertake the delivery or sale or promotion of goods or services to a private residence unless in the company of an adult supervisor. This does not include letterbox delivery of printed material.
7.9 A child must not be required to perform non-agricultural hazardous work. Non-agricultural hazardous work is defined in Schedule 1 of this award.
7.9.1 If there is any potential that the assigned duties for a child could be deemed hazardous, the employer is required to contact SafeWork SA for clarification and to obtain certification that the work is not of a hazardous nature.
7.10 A child under age 16 must not be required perform agricultural hazardous work. Agricultural hazardous work is defined in Schedule 2 of this award.
7.10.1 If there is any potential that the assigned duties for a child could be deemed hazardous, the employer is required to contact SafeWork SA for clarification and to obtain certification that the work is not of a hazardous nature.
7.11 A child shall not be employed working on a building construction site in a defined ‘high-risk construction work’ as defined in Schedule 3 of this award.
Clause 8 Special limitation on hours of employment
8.1 Maximum allowable hours of work for children enrolled in formal education or training are:
8.2 Children under 15 years of age are not permitted to work between 6pm and 6am.
8.3 All other children enrolled in formal education or training are not permitted to work between 10pm and 6am Monday through to Thursday during term periods.
8.4 A child enrolled in formal education or training has the right to refuse work after 8pm during term if they consider there will be an adverse impact on their studies. If required by an employer, a supporting statement from a teacher or the educational institution will be provided in evidence.
8.5 The maximum period of a shift or usual hours of work in a day shall be 8 hours for a child who is not enrolled in formal education or training.
8.6 A child must not, except in an emergency, be required to work at times which would prevent their attendance in formal education or training.
Clause 9 Special rest periods
9.1 An employer shall provide a special rest period for a child of 30 minutes after 4 hours of work and must not require a child to work for any period exceeding 4 hours without a rest break of at least 30 consecutive minutes.
9.2 A special rest period may coincide or overlap with the other breaks set out in clause 9.1.
Clause 10 Supervision arrangements
10.1 While a child is working the child must be supervised by a person who is at least 18 years of age. The person supervising the child must not supervise more than 3 other children at the same time.
10.2 Clause 10.1 shall not be taken to over ride any arrangements which provide greater levels of supervision made by the Training and Skills Commission in respect of supervision arrangements for apprentices and trainees engaged under an approved contract of training.
10.3 Clause 10.1 shall not be taken to over ride any arrangements which provide greater levels of supervision specified in any award or agreement in respect of supervision arrangements.
Clause 11 Minimum age
11.1 Other than by special exemption (approved by SafeWork SA and supported by a parent/ guardian and the relevant school authority), no child shall be employed who is aged less than 14 years of age.
Clause 12 Trial Work and Probation
12.1 A child who undertakes any work on a trial basis with a view to obtaining employment with the person from whom the work is performed is entitled to be paid for that work in accordance with the terms of the award or industrial instrument covering that employment.
12.1.2 In the absence of any other award or industrial instrument applicable at the workplace the minimum rate for a trial period shall be as provided in clause 26.9.
12.2 In the first three months of employment, a child shall be provided with sufficient support and on job training to satisfactorily meet any probationary requirements. Clear standards of conduct and work performance must be provided by the employer, and be discussed with and understood by the employee. Regular feedback must be provided by the employer to enable the employee to respond to any issues raised or to meet conduct/work performance requirements.
Clause 13 Access to transport
13.1 When a child’s usual means of transport or public transport is not available after ceasing work, the employer will cover the cost of arranging independent transport to the child’s usual place of residence. Usual means of transport shall mean and include the employee’s own vehicle or arrangements for private transport as agreed between the employer and employee.
13.2 Where a child normally uses public transport and commences and/or concludes overtime or shift work between 8.30 p.m. and 6.00 a.m. at a time when public transport is not available, the employer will pay the cost of arranging independent transport to the child’s home or usual place of residence or pay them their current wage for the time reasonably occupied in traveling to and/or from their home or usual place of residence. See clause 8 regarding general hours of work during and outside term.
Clause 14 Shift arrangements
14.1 Subject to provisions of clause 8, a child must not be required to work shift work unless the parent/guardian of the child has been advised in each instance and has acknowledged to the arrangements.
14.2 A child must not, except in an emergency, be required to work shift work at times which would prevent their attendance in formal education or training.
Clause 15 Breaks between shifts
15.1 An employer shall ensure that between shifts, a child receives a minimum break of 14 consecutive hours from the finishing time of a shift until the commencing time of the next shift.
Clause 16 Prohibition on split shifts
16.1 A child must not work a split shift. A split shift is where an employee is rostered for two periods of work, separated by a non-work period greater than one hour, on the same day. Clause 17 Rosters
17.1 An employer must post a roster in the workplace, or provide individual written advice to a child, which identifies in advance the expected pattern and hours of attendance for children employed in the workplace over the subsequent week, or a longer period depending on the roster cycle applicable in the workplace..
17.2 An employer must provide a period of notice of at least 24 hours for a change to the usual scheduled work arrangements in a roster.
17.3 An employer shall not alter the rostered arrangements unless there is a genuine operational requirement.
17.4 An employer shall not threaten to or vary the roster arrangements as a means of dealing with a disciplinary, work performance or other conduct related matter.
Clause 18 General breaks and rest periods
18.1 A child is entitled to the same morning, afternoon, meal and lunch breaks as other employees in their workplace.
18.2 An employer shall ensure that a child not in formal education or training receives, in any period of 7 days, a minimum break from attendance at work of 2 days which shall as far as is practicable be consecutive.
18.3 An employer shall ensure that a child in formal education or training receives, in any period of 7 days during a non school week, a minimum break from attendance at work of 2 days which shall as far as is practicable be consecutive.
Clause 19 Overtime
19.1 Subject to provisions of clause 8, a child must not be required to work overtime unless the parent/guardian of the child has been advised in each instance and has acknowledged the arrangements.
19.2 A child must not, except in an emergency, be required to work overtime at times which would prevent their attendance in formal education or training.
19.3 An employer shall ensure that a child receives a minimum break of 14 consecutive hours in each period of 24 hours after a period of overtime.
Clause 20 Availability of records
20.1 An employer shall make available for inspection by an authorised person employment records and any records associated with compliance with the terms of this award.
Clause 21 Invitation to attend premises
21.1 Where requested and nominated by a child, or the child’s parent or guardian, an employer must invite a representative from the nominated relevant advisory body to attend the workplace and meet with the child and/or the employer during working hours.
21.2 Where such a request is made the employer must issue the invitation within 24 hours and facilitate the attendance at the earliest opportunity.
Clause 22 Information and support regarding employment matters
22.1 An employer must ensure that children are provided with written information and contact information regarding relevant advisory bodies.
22.2 A relevant advisory body covers statutory authorities, peak entities and organisations providing employment and legal services as defined in clause 6.
22.3 Appendix 1 of Schedule 4 sets out the pro-forma advice incorporated into the model appointment letter. The provision of information in a written format other than as set out in the model letter shall not constitute a breach of this award.
22.4 The employer shall allow a noticeboard to be used to post information on young workers’ issues from relevant advisory bodies.
Clause 23 Right of entry
23.1 A parent/guardian or representative from a relevant advisory body may enter an employer’s premises at which one or more children are employed and inspect compliance with this award and address children during working time on matters associated with the terms and conditions of their employment.
23.2 Before a parent/guardian or representative from a relevant advisory body exercises powers under clause 23.1, the official must give reasonable notice to the employer.
23.3 For the purposes of clause 23.2 (a) the notice must be given in writing; and (b) a period of 24 hours notice will be taken to be reasonable unless some other period is reasonable in the circumstances of the particular case.
23.4 A parent/guardian or representative from a relevant advisory body exercising a power under clause 23.1 must not interrupt the performance of work at the workplace.
23.5 A person exercising powers under this section must not: (a) harass an employer or employee; or (b) address offensive language to an employer or an employee; or
(c) hinder or obstruct an employee in carrying out a duty of employment; or (d) use or threaten to use force in relation to an employer, an employee or any other person.
Clause 24 Duties of employers of children
24.1 Any employer who employs a child shall comply with the following procedures.
24.1.1 Before employing a child, an employer shall require the production of a copy of the birth certificate or other satisfactory evidence of the age of the child.
24.1.2 Before employing a child, an employer shall obtain the written acknowledgement of the parent or guardian of the child. Refer to the model letter of appointment at Schedule 4 of this award.
24.1.3 An employer shall provide an occupational health and safety induction on commencement.
24.1.4 An employer shall undertake a health and safety risk assessment to ascertain whether the tasks required for the work may pose a health and safety risk due to the child’s age and physical development.
24.1.5 An employer shall maintain a register, or other satisfactory record, containing, in relation to every child employed by him or her, the following particulars in addition to usual workplace records: (a) any matters pertinent to carrying heavy loads; (b) the duties involved in the position; (c) the time the child takes for special breaks under clause 8; (d) details of usual transport arrangements; (e) emergency contact details; (f) whether the child is enrolled in a formal course of education or training.
24.2 An employer shall keep, at the place where a child is employed, such records as are necessary to show whether the provisions of this award are being complied with in relation to his or her employees and such records shall be retained by the employer for at least 6 years.
24.3 In any case where: (a) there is a dispute between an employer and a child, or; (b) there is a prosecution for an offence under this award, and the records required to be kept by an employer under clause 24.2 are not available, the onus of proving that the provisions of this have been complied with shall lie on the employer.
24.4 An employer must not provide goods and/or services as payment or part payment of any entitlements under existing award or agreement provisions.
24.5 An employer of a child attending school, TAFE or another vocational training provider shall provide time off from work when the child is required to attend an examination required for their schooling and/or training with no loss of entitlements.
Clause 25 Letter of appointment
25.1 Every child shall be advised in writing at the time of engagement whether they are full-time, part-time or casual, their rate of pay, classification, job description, duties, working hours, and roster arrangements.
25.2 In the case of casual employees such notification need only be supplied at the initial engagement and when that employee's employment status changes (i.e. full-time weekly, part-time weekly or casual). Such written advice may be provided as per the model letter in Schedule 4 to this Award.
25.3 Every child shall also be advised of details of the awards/industrial instruments applicable in the workplace and the name and contact details of the parties to those awards/ industrial instruments.
25.4 The provision of information as required by this clause and clause 10 in a written format other than that provided in the model letter shall not constitute a breach of the Award.
Clause 26 Minimum standards
26.1 This clause shall apply in a particular workplace where provisions with lesser benefit apply to arrangements covering the employment of children.
26.2 Employers shall provide to all children minimum entitlements to sick leave, carer’s leave, bereavement leave, annual leave and parental leave as provided for in the Fair Work Act 1994, based on a 38 hour week.
26.3 Sick leave entitlement
23.3.1 An employee's entitlement to sick leave accrues as follows: (a) for the first year of continuous service, entitlement to sick leave accrues at the rate of 5 / 26 of one day for each completed week; and (b) for each later year of continuous service, an entitlement to 10 days' sick leave accrues at the beginning of each year.
26.4 Carer's leave entitlement
26.4.1 An employee with an accrued entitlement to sick leave under a preceding section may use up to 5 days of that entitlement in each year to care for and support members of the employee's family when they are sick.
26.5 Bereavement leave entitlement
26.5.1 An employee is entitled to 2 days bereavement leave in the case of the death of a member of the employee's family.
26.5.2 The leave may be taken: (a) at a time of the employee's choosing within a period commencing on the date of death of the family member and ending 2 days after the funeral; or (b) at some other time agreed with the employer.
26.6 Annual leave entitlement
26.6.1 An employee's entitlement to annual leave accrues as follows: (a) an employee is entitled to 4 weeks' annual leave for each completed year of continuous service; and (b) if an employee's employment comes to an end and the period of service is not exactly divisible into complete years, the employee is entitled to ⅓ of one week's annual leave for each completed month of the remainder.
26.7 Parental leave entitlement
26.7.1 An employee is entitled to take parental leave for a period of up to 52 weeks for: (a) the birth of a child to the employee or the employee's spouse; or (b) the placement of a child with the employee with a view to the adoption of the child by the employee.
26.7.2 An employee is not entitled to take parental leave unless the employee: (a) has, before the expected date of birth or placement, completed at least 12 months' continuous service with the employer; and (b) has given the employer at least ten weeks' written notice of intention to take the leave.
26.7.3 An employee is not entitled to take parental leave at the same time as the employee's spouse apart from one week's parental leave taken by the employee and the employee's spouse immediately after the birth of the child or the placement of the child for adoption with the employee and the employee's spouse.
26.7.4 Apart from the period of one week referred to above, an employee's entitlement to parental leave is reduced by a period of parental leave taken by the employee's spouse for the same child.
26.8 Severance payments
26.8.1 This clause shall apply in a particular workplace where provisions with lesser benefit apply to arrangements covering the employment of children.
26.8.2 A child whose employment is terminated by reason of redundancy is entitled to the following amount of severance pay in respect of a period of continuous service as set out in the table below.
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