Child Employment Bill
Monday, 4 April 2011
The Hon. R.I. LUCAS (17:01): I rise to support the second reading of the bill and indicate, as the Hon. Mr Hood has indicated, that we are in the process of drafting amendments to the bill which we will seek to discuss during the committee stages of the debate. I intend to, at least, briefly outline some of the arguments for some of the amendments that we will be putting forward during the committee stage of the debate.
In speaking to the bill at the second reading, I indicate that we have consulted widely with a significant number of stakeholders and, in particular, industry associations. I think it is fair to summarise that the majority view probably is that they believe that most of the protections should already be covered in existing statute law anyway, and I guess their argument is best summarised by the submission that some members may have seen from Business SA late last year. I will summarise briefly their arguments.
Business SA firstly acknowledges that young workers should be provided with a proper and safe working environment, as should all workers should; that should be given. They also acknowledge that Business SA is fully aware of the difficulties faced by young people in obtaining employment and, at a later stage, I think we may well put on the record the most recent figures, which do show that the youth unemployment rate in South Australia is significantly higher than most, if not all, other states. Therefore the employability of young South Australians needs to be at the top of mind, in addition to their health, safety and welfare, when we consider the Child Employment Bill.
If there is anything we do in legislation (as some of these industry groups are claiming) which will reduce the opportunity for young people to be employed in the future, then we need to be cautious about that, and I think we need to look at mechanisms where collaboration and cooperation between all the stakeholders can be fully exhausted before we have to move down the heavy legislative approach. Business SA also argues that:
…inappropriate legislation could jeopardise a young person's prospects of acquiring employment if employers deemed it was too burdensome or confusing to employ a young person.
Business SA supports young workers being protected from exploitation in the workplace, but they raise this issue: where is the empirical evidence of widespread or systematic exploitation of young workers in the workplace?
We can all go back decades or centuries through the history books to the times of child slave labour and the various inappropriate attitude of the employers to the employment of young children during those particular years. My question to the minister up-front, when he responds to the second reading, is: other than the isolated example the Hon. Mr Hood has had quoted to him, which we have all had, can the minister indicate the evidence that there is widespread and systematic exploitation of young people in the South Australian workplace?
Even if it is not widespread and systematic, I guess there are further examples of the sorts of areas where this legislation will tackle or prevent similar exploitation in the future. As Business SA points out, we need to bear in mind that we do now have a Fair Work Act, we now have a situation where all private sector employees are covered by federal legislation as opposed to state legislation and, whilst it is right that the federal industrial relations mechanism does envisage child employment laws (and they exist in a number of other jurisdictions), there are very strict and tight restrictions on what we in the state can legislate for in relation to child or young workers' employment. The minister's second reading speech makes that quite clear. The minister says:
…t he commonwealth industrial relations law s 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.
I foolishly asked my office to give me a copy of the national employment standards, and there are 40 or 50 pages of national employment standards covering a whole range of minute detail in relation to young people's employment.
We in the state are not allowed to legislate on anything that is covered in the national employment standards or anything included in a modern award or agreement, for example, rates of pay. So, whilst a lot of issues may well be raised about young people's employment in South Australia, the current structure of industrial relations means that we have no authority over rates of pay, working hours or all those sort of things that are covered in awards or in the national employment standards. We are off covering something other than all those critical issues. Indeed, the minister says:
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.
So, again all those areas cannot be traversed by the state's Child Employment Bill. Indeed, a number of the industry groups have raised these issues. We have the Fair Work Act and occupational health and safety laws that cover all workers, including young workers, irrespective of their age. All those occupational health and safety laws apply to all employees and all workers within our workplace. Finally, Business SA in its submission also says:
...to remember that determinations of the Industrial Relations Court of South Australia have established precedents that clearly impose a higher duty of care on employers towards young and inexperienced workers.
Business SA is pointing out to us that not only do we have the Fair Work Act and occupational health and safety laws but also we have decisions of the Industrial Relations Court and have provisions (I omitted to mention this) in the Education Act (to which I will return later) which make it quite clear already that it is an offence for an employer to do anything in relation to a child's employment which might render the child unfit to attend school or participate in an approved learning program, and there is a penalty of $5,000 already for that under the Education Act.
The argument from Business SA (and from virtually all the industry associations I spoke to, to varying degrees) was saying, 'Hey, look, we understand why you're doing this in the end as a state parliament, but if you are actually looking at it rationally virtually all the field is covered already.' It is for the minister to come back to the chamber and highlight to us the examples of exploitation of young workers that will be fixed, potentially, by this legislation—not exploitation of young workers that will be fixed by the Fair Work Act, occupational health and safety standards or the various provisions of national awards because they already exist, those protections are already there. What we need to hear from the minister is: what are the specific areas that this particular bill will correct if it comes into force?
As I said, that is the general position of the employer groups. I think that those groups believe that, having put these views to the government through the Industrial Relations Advisory Council (IRAC), and having had various other opportunities to put their view to government, the government and, therefore potentially the parliament, nevertheless will proceed to implement some version of child employment laws. They have argued strongly to those prepared to listen to them that there needs to be significant amendment made to the legislation.
In particular, what they are saying is that the general theme or premise of the provisions is to try to ensure that we do not traverse areas we are not meant to traverse and already covered by the Fair Work Act or occupational health and safety legislation or, indeed the Education Act, and that in some way, if we are to make changes, they are consistent with those particular provisions and not in conflict with the provisions of the Fair Work Act, occupational health and safety and the Education Act.
As I said, I am having amendments drafted and we will go out to consultation on those during the period between this week's sitting and the next week of sitting. From the upper house's viewpoint, we will not be in a position to proceed to the opposition amendments until the next sitting week of parliament. That is our proposed course of action. I now intend to highlight a number of the areas that have been canvassed with us and that we are currently looking to amend. The first one relates to the objects of the act and covers a number of other areas within the legislation, as well; that is, under object 3A children are not required to undertake work that may be harmful to their health, safety or development.
There is no challenge in relation to health and safety as to what we understand by those terms. We have occupational health and safety laws, etc., but there are very significant questions being raised as to what is meant by and what the courts would interpret as the 'development of a young worker'. Evidently, the original drafts did talk about physical, mental, moral and social development but, after concerns were expressed, those descriptors were removed from the legislation and just the word 'development' was left. The same issue from the employer associations is, 'Therefore, that means all those potential descriptors are adequate, and it might also mean spiritual development, or development right across the spectrum in terms of a young person's development.'
Obviously, from an employer's viewpoint, they argue that in many respects the key influences on a young person's development will not be the employer (for whom they are working for a limited number of hours per week) but parents and friends, family and other influences within that young person's environment. Employers are fearful because there are penalties under the act if anything they do is deemed to have interfered with, affected or is harmful to a young worker's development.
We are certainly looking at the issue of development and potentially looking to remove the word 'development' and leaving it as health and safety and talking about what we were told was the key aspect of this—namely, subclause (b), work that does not adversely affect children's schooling, and that is consistent with the Education Act; that is, nothing in a child's employment should adversely affect a child or young person's schooling, his or her education.
That was the focus of the Education Act, and that is potentially the area that the Child Employment Bill covers that the Fair Work Bill and the occupational health and safety bill, etc. do not cover. The opposition recognises that that is, in significant part, the work of this bill if it has any significant work to do at all, that is, ensuring, as the Education Act has sought to do, that employment of a young person does not impact on their schooling. So, from our viewpoint, we can see the argument for not impacting on schooling.
We certainly see the argument about health and safety although, again, that is covered by occupational health and safety laws anyway, but we have a significant question mark about the inclusion of the word 'development' because of its impreciseness and because it evidently lacks certainly legal precedent as it relates to a young person and a young person's development. We seek, I guess, explanation from the government as to how it might be interpreted and what significant additional impost this might mean on employers employing young people.
I do not intend to raise all of the issues that will be raised in the committee; just the major ones. A key issue for most employer groups is the issue of what is a child. The government's view is that anyone under the age of 18 is a child, and the Child Employment Bill will relate to anyone under the age of 18. Certainly, the view of virtually all of the industry associations is that, if this is to be consistent with the Education Act requirements, the compulsory age of schooling ought to be the provision in the Education Act; that is, that you have to be at school up to the age of 16.
As you know, for the next year, you need to be either earning, learning or in a job, or whatever it is. I forget the government's catchphrase but, in essence, you need to be at school, in a training program or in a job, up to the age of 17. You are required to be at school up until 16, and the Education Act therefore must apply to you up until the age of 16. If this bill is to be consistent with the Education Act, it obviously makes more sense if it relates to the compulsory age of schooling, which is the age of 16.
I think it does raise some issues. The Hon. Mr Hood raised an issue which obviously the advisers from the government have raised with him, that maybe the regulations are going to ban children—that is, under the age of 18—from using angle grinders. Now, there are any number of 17-year-old apprentices out there at the moment who would be using angle grinders or a range of other pieces of equipment which the government's advisers might deem to be too dangerous for a child.
There is obviously going to be an argument that, at the age of 13 or 14, it is clearly potentially going to be too dangerous. Some of us would have the view that, if you are in the workplace as an apprentice at the age of 17 or 18, you should be able to, and somewhere you draw the line in between. The government says, 'No; it's going to have to be the age of 18.' I think that is an issue in relation to the government's definition of a child being someone under the age of 18.
It will come back through other provisions in the bill as well, because of the definition of 18, there will potentially be impacts on things which many of us would accept as perhaps reasonable and defensible employment practice for 17-year-olds in the workplace. What we might see from this bill is that being outlawed or banned and penalties being imposed on employers in those circumstances. So, that issue of the age of a child is a critical aspect of the legislation, and we will be looking at amendments in that area as well.
There are some specific technical issues in relation to the definition of a guardian into which I will not go into detail now. We have had discussion with parliamentary counsel, and I would be hopeful, perhaps, that when the government sees our amendment there, it might be prepared to support it. As I said, I will not delay the second reading by going into the detail of that change at this stage.
The next significant area is in relation to the consistency of penalties. Under the Education Act that I referred to earlier, the current maximum penalty for an employer, in essence, adversely affecting a child's schooling is $5,000. For virtually the same offence here, particularly if we take out the word 'development', the penalty will be $20,000. The opposition is open to the argument as to whether it is appropriate that it be $5,000, $20,000 or perhaps some number in between, but it would just seem logical that it be consistent.
If it is the government's view that it should be increased from the $5,000 in the Education Act at the moment, then perhaps the Education Act penalty ought to be lifted to a new figure of somewhere between $5,000 and $20,000 or, if the government is insisting on $20,000, perhaps we ought to be seeking to amend the Education Act provision because, for the same offence, it does not make any sense to have the financial penalty in this bill four times the level of the financial penalty in the Education Act. It ought to be consistent and, as I said, we in the opposition, in the Liberal Party, have an open mind in relation to how that might be achieved and at what level.
Regarding the significant concerns of industry groups, I have not spent a lot of time today reading up to eight or nine submissions from different industry groups because there is a similarity in many respects to many of them. I do not want to underestimate or understate the degree of concern that many of the associations have about the legislation just because I have not taken the opportunity to read onto the record all the concerns they have highlighted. We are obviously hopeful that perhaps some reasonable amendment can ensure that some of their concerns can be allayed.
One of the significant areas that I hope members would have a look at is in the industrial relations area. There has been a very useful tripartite process through the Industrial Relations Advisory Council (IRAC), where employers, worker representatives or unions and the government have been able to discuss and agree on changes that relate to industrial relations law, or at least there is the opportunity for consultation.
I am advised that, under the occupational health and safety legislation, any changes in relation to regulations, I think, require a recommendation from IRAC. So, basically, before we see the regulations, business and worker representatives and the government need to have seen them and agreed upon them, and then they can be implemented by the government. I would have thought that, to most members in this chamber, that might sound like an eminently sensible process. It actually means consultation and agreement by all those affected stakeholders before it is implemented and before we come to a position where we have to confront the situation of potentially disallowing a regulation or something along those lines.
We are certainly going to be looking at a couple of amendments in that area—that is, amendments that will relate to regulations, which of course either house of parliament will still retain the right to disallow but, prior to that, that the IRAC process should be followed and that a new regulation should be on the recommendation of IRAC before it comes to be implemented. I think in that way we might be able to ameliorate or allay many of the concerns of the industry groups. They say to me, 'Well, look, there is very wide regulation-making power here.'
The Hon. Mr Hood has outlined this in his contribution based on advice from government advisers. 'This will be in the regulations, that will be in the regulations,' and they are saying, 'Well, what are the regulations?' I am sure that the government's answer is going to be, 'We haven't done the regulations yet.' We had this debate before. In this particular area, if we establish the IRAC process as being the initial filter and approver of the regulations, we may well be able to allay the concerns of many of the industry associations and industry groups as well.
We have not yet formally gone through our own Liberal Party process, but, similarly, I believe that we will propose that the codes of practice—and the Hon. Mr Hood referred to this—would be on the basis of the recommendation from IRAC as well, and again, as the Hon. Mr Hood referred to, the devil will be in the detail. There can be quite explicit codes of practice and, if they can be agreed between unions, businesses and government beforehand, that makes good sense, in our judgement anyway, and we will be proposing an amendment along those lines. Again, we are hopeful that members will be prepared to consider those.
As the Hon. Mr Hood referred to, there are some quite explicit provisions in the bill that relate to restrictions relating to nudity. On the surface of it, we support a significant part of those amendments. I cannot recall too many other pieces of law that are quite as explicit as this that we are considering. For example:
An employer must not require or permit a child to work if—
(a) the child is naked; or
(b) the child's sexual organs or anus are visible; or
(c) in the case of a female child aged five years or more—her breasts are visible.
Maximum penalty: $20,000.
So, it is quite an explicit provision in the legislation. The Hon. Mr Hood has indicated general support for the provision. It is certainly one which, obviously, has some support.
I have raised with government advisers, and at this stage this is just a personal view, that on the surface it seems to indicate that there is to be a penalty if a six year old female child in the entertainment industry is employed in a film or commercial, for want of a more appropriate word, 'topless' at the beach.
As a father of four, and certainly with friends who have many more daughters than we have, there have been any number of occasions where young daughters, or girls, of six, seven and eight, certainly well under the age of puberty, have been quite happily running around on the beach just with their bottoms on, if I can put it that way, the bottom part of their bathing suit, or topless, as this particular legislative provision might refer to.
The question is: is that the intent of the legislation? Clearly, there is a line where a female child, her breasts being visible, is inappropriate, and this particular provision will be supportive, but are we talking about a six year old? Are we talking about a seven year old, in relation to a six year old or a seven year old's breasts being visible?
Not all government ministers are parents, not all government ministers have daughters, and therefore their life experience in relation to some of these things may be different to the life experience of those who are parents and, indeed, have had daughters, or still have daughters of that particular age. I raise the question, and it is an issue that I intend to explore in the committee stage.
This whole provision, and I am not talking now about the nudity aspect, I am talking about the child employment aspect generally of the entertainment industry. My colleague Rachel Sanderson, the member for Adelaide, as many would know, was a very successful small business person in her own right prior to entering parliament and actually runs one of the more successful modelling agencies in South Australia.
Ms Sanderson has indicated to me—and, again, I hasten to say that I am not talking here specifically about the nudity provision that I have raised—that she has spoken to a number of managers of modelling agencies in South Australia about the overall provisions of this bill and says that none of them have been consulted and none of them are aware of the provisions of the legislation.
I can, in part, understand that because I presume that the government's advisers have worked through industry associations. I understand that there is no specific modelling and advertising agency-type industry association. There is one that represents the workers, the media alliance, whatever its long title is, and we have consulted with them, but in terms of the people who actually run these businesses, the ad agencies, photographers, modelling agencies, all of those, and in particular modelling agencies, but there would be theatre agencies and all of these sort of academies of the moment, where a lot of young people, in particular in the modelling area, defined as children (under the age of 18) in this bill, are employed.
There are any number of successful models—particularly young females, but occasionally young males—who are successful models on the national and international stage under the age that this government is going to define as a child. There are any number of those successful models under the age of 18 who will be making life choices in terms of future career options which, for a part, will impact on their schooling. In some cases, they make decisions as child actors or child models to defer, delay or affect in some way their education or their schooling.
There are provisions in the legislation in relation to parental approval but, again, this is one of the issues where I think you come back to this issue of whether the child definition is appropriate at age 18 or is it more appropriate at age 16, which is the compulsory age of schooling? After age 16, no-one can compel a young person to stay at school (or go to school for that matter), so they have that flexibility in terms of what they do with their lives from the age of 16. Yet this bill is saying that will not be the case up until the age of 18 and that these particular provisions will apply to any young person up to the age of 18.
My colleague Rachel Sanderson is further consulting with modelling agencies and others, and we will certainly be indebted to any information she can share with us for our debate in the Legislative Council and see whether or not there needs to be appropriate amendment to sensibly cater for what occurs relatively often in relation to young people (or children, as defined by the government under the age of 18) being employed in the modelling, acting or advertising industries—sometimes for a brief period of time.
Your time in the spotlight might be for a year and then your look is not the appropriate one or your body shape does not become the appropriate one or they move on to somebody else in terms of who is the flavour of the month in terms of being the child actor prodigy of the future. All of those things can change and change quickly, and that is why—appropriately, of course—we need to ensure that appropriate education options remain, particularly under the age of compulsion for young people.
The next revision I raise generally is one of those raised by the Hon. Mr Hood, and that is that the employer must provide the child worker with certain information. Again, the point the Hon. Mr Hood raised is that under the Fair Work Act every employee has to be provided with written information in terms of their rights and responsibilities, and this will just be another piece of paperwork and red tape where the young person will get all the paperwork under the Fair Work Act and then they will get all the paperwork under this proposed child employment act as well. Certainly, we are looking at amendment in relation to that as well.
There are a number of other areas, which are more technical issues, which I will leave to the committee stage of the debate. In particular, there are some issues and questions to be raised in relation to the functions of inspectors, although parliamentary counsel have come back to me in the last 24 hours with advice that the functions that we are proposing to give to the inspectors here are the same or very similar to functions that we have given to a range of other inspectors in recent times in other statutes. So we will certainly have a look at the parliamentary counsel response in relation to that. There is a technical issue in relation to the 'no double jeopardy' provisions and proceedings for offences which we will raise at the committee stage.
The final major point that I would make is that under the regulation-making power provisions there is a provision that 'the regulations may regulate children's working hours'. Again, the minister has already outlined to us that this legislation should not traverse the Fair Work Act, the national employment standards and the national awards. We are told that working hours for all employees, including children, are covered under those particular areas.
It certainly has caused some concern that the government is saying here that it wants the regulations to be able to regulate children's working hours when, as has been indicated, that is already covered under the provisions of other statutes. We will be looking at making some amendments to that particular area. I can understand it if the government's intention is to try and ensure that an employer not be allowed to employ a young person up until 3am through the week because that might impact on the young person's schooling; it is certainly parliamentary counsel's view that that is already covered under other provisions in the bill. It is already covered under the Education Act and it would be covered under other provisions in the bill; that is, it would be an action taken by an employer that had an adverse effect on a young person's schooling.
So, a specific regulation-making power which provides you have to regulate children's working hours is not required, in the view of parliamentary counsel. On the surface of it, that would appear to be my argument as well. If that is the government's intention, which I understand it is—that is, we might want to see a set of circumstances where it is not allowed to have a young person working at 3am at the local takeaway outlet because it impacts on their schooling—then, even if we remove this regulation-making provision, the government would still be able to achieve that goal through the other provisions in the legislation. It does not open up the potential for the government to use this bill to impose broader regulations in relation to children's working hours.
That is one of the issues we are consulting on at the moment, and potentially we will bring back amendment on it as well. With that, I have just highlighted the more significant of the amendments and issues that have been canvassed with the opposition already. As I said, we are having amendments drafted and, as soon as we have concluded our consultations, we will circulate those amendments to all members and we will be in a position, hopefully soon after we resume in three weeks' time, to go through the extensive committee stage of the legislation.