Employing under 15yos leads to conviction

In a case that highlights the serious implications of not investigating and adhering to the employment regulations in your particular jurisdiction, a business has pled guilty and been placed on a good behaviour bond for employing children under the age of 15 years.

Case Review

This particular case involved a distribution business in Victoria, who engaged 300 children under the age of 15 years without the permits and checks that are required to be met in the State of Victoria,

The result was over 318 counts of breaches to the Victorian child employment laws, which the business pled guilty to and was placed on a good behaviour for and fined.

Minors, Juniors, Children

The correct employment, payment and management of people is imperative for businesses to get right, but it can be complicated.  It becomes even more complicated when engaging persons who are not Adults.  All businesses must understand not only what a Junior and a Minor is and what their responsibilities to these vulnerable employees are.

When a person becomes an adult is more complicated than having a birthday.  In the social context persons are considered to be adults when they are able to vote, consume restricted products (alcohol and tobacco), bind themselves in contracts and be legally autonomous…so when they turn 18 years.

In the employment context there are complicating factors that result in an employee being a Junior until they are over 20 or 21 years of age.

When considering the vulnerable group of “Juniors” it is important to understand the definitions of key terms;

• Adult Employee:
  As per the Sect 12 Fair Work Act 2009 (Cth), an Adult is an employee over 21 years old
• Junior Employee:
  As per the Sect 12 Fair Work Act 2009 (Cth), a Junior is an employee under 21 years old
• Minor Person:
  A minor is a person under the age of 18 years old
• School Aged Child:
  A child under the age of 16 years and required to be enrolled in school (has not yet completed year 10)

So all Minors are “Juniors” when it comes to employment, but even after reaching the age of 18 years, when they can vote and have the legal autonomy of an adult in Australian society, an employee remains a “Junior” in terms of employment until they reach the age of 21 years.

Employing Juniors

“The State child employment laws differ in the requirements that place on the employment of minors.  In Queensland and Victoria a minor can be employed, with conditions, from the age of 13 years.  In Western Australia minors who have reached 15 years can be employed, while the remaining States do not set an explicit minimum age for employment”, explains ACAPMAs Elisha Radwanowski.

“The conditions that apply to that employment change from State to State.  For example in Queensland there is a requirement for a guardian to countersign employment documents as well as; a maximum of 4h work on a school day (8h work on a non school day), maximum of 12h work in a school week (38h work in a non school week) and no work between 22:00 and 06:00”, adds Elisha.

“The conditions that apply to the work of minors is further expanded by the actual Award conditions and other legislative elements, such as the fuel retail Award which stipulates that employees under the age of 18 may not work unsupervised between 19:00-21:00 and may not work at all between 21:00 and 06:30”, continues Elisha.

“Depending on the work that is being done by a minor there are additional requirements such as supervisors having a Working With Children Certificate, though it is noted these do not apply to fuel retail, unless the employee is under 15 years old in Victoria.  In a fuel retail setting there are restrictions on the handling or sale of restricted products, such as tobacco which vary from State to State”, Elisha noted.

“The penalties for breaching the Fair Work (Protecting Vulnerable Workers) Act are substantial, with a serious contravention penalty amounting to $133,200.  Businesses should note that Juniors are considered Vulnerable Workers” adds Elisha.

Learnings for all businesses

“Understanding the interaction between State and Federal legislation and ensuring compliant and practical engagement of Juniors is vital.  Juniors can not only engage the community but also provide a vital ‘second set’ of hands instore or in the office to service customers and achieve business goals, but the business must understand the requirements” explains ACAPMAs Elisha Radwanowski.

“There is no need to be scared of engaging Juniors, they really can add to the productivity of a workplace and in a tight labour market every hand helps, it is simply vital that the business understand the requirements so they can be sure they are meeting them” concludes Elisha.

ACAPMA Member Resources

ACAPMA Members have access to the ACAPMA Employing Juniors Guide which details the various jurisdictional and Award implications of employing minor and junior staff.

Members can download the Guide from the ACAPMA Member Resource Portal:  https://acapma.com.au/member-portal/  or simply email employment@acapma.com.au to request a copy.