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Child Employment Bill 2005
Child Employment Bill 2005
Explanatory Notes
Objectives of the Legislation
The objective of the Bill is to safeguard children working in Queensland. In
achieving this, the Bill and a proposed Regulation will provide safeguards
to ensure that work does not interfere with children's schooling and that
children are prevented from performing work that may be harmful to their
health or safety or their physical, mental, moral or social development.
The objective of the Part 7 amendments to the Industrial Relations Act
1999 is to ensure that Queensland employees continue to enjoy a fair and
balanced industrial relations system regardless of developments at the
federal level by providing extended family provisions as minimum
entitlements and to provide for some technical amendments.
Reasons for the Legislation
During 2002-2004, the Commission for Children and Young People and
Child Guardian (Children's Commission) undertook a review of child
labour in Queensland. In April 2005 the Government responded to the
recommendations of the Review. Generally, the Government supported the
intent of the recommendations and approved the development of stand
alone legislation to fill gaps where existing legislation is considered
inadequate to protect children (i.e. persons under 18 years of age) at work.
The Bill and proposed Regulation will apply to all children under the age
of 18. However, the bulk of the provisions relate to children who are of
school age or younger (i.e. those less than 16 years of age or who have yet
to complete year ten of their compulsory schooling).
The Bill and proposed Regulation will:
� prescribe the minimum ages for work and the types of work in which
school-aged and young children can work;
� prescribe the number of hours and times at which work may be
performed and other matters such as supervisory requirements at work
for school-aged and young children;
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Child Employment Bill 2005
� require parental consent to be given for school-aged and young
children to work except where those children live independently from
their parents;
� prohibit the employment of children when required to be at school;
� require employers to keep specific records about child employment;
and
� make regulations about the work conditions for children in particular
types of businesses, including in the entertainment industry.
The Bill and proposed Regulation will be supported by two new mandatory
Codes of Practice which will be developed in the 12 months following the
introduction of the Act. These relate to the employment of young people in
the entertainment industry (including a prohibition on minors working in
adult entertainment) and a specific workplace health and safety code for
young workers.
The Bill also makes amendments to the Industrial Relations Act 1999 as a
consequence of an August 2005 decision of the Full Bench of the
Australian Industrial Relations Commission (AIRC) in the Family
Provisions test case. The AIRC decision was consistent with the
Queensland government position as outlined in the Joint States and
Territories submission made in the test case.
The amendments improve standards and entitlements for parental leave,
carer's leave and bereavement leave. In recent years, there has been an
increasing recognition of the importance of balancing work and family,
partly inspired by the increasing number of women in the workforce and
the ageing of the population. The Queensland Government has made a
number of commitments aimed at helping Queenslanders balance work and
family, including the introduction of legislation.
The Bill further enhances those entitlements and reflects the Queensland
government's approach of legislating to improve work and family
provisions.
The Bill has the advantage of providing broad coverage of all employees in
Queensland and will provide fall-back protection for employees who are
not employed by a constitutional corporation and so are not captured by the
proposed federal legislation. The Bill also incorporates the family
provisions which will form part of the proposed federal legislation.
The Bill also includes 2 minor amendments to the Industrial Relations Act
1999 of a technical nature.
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Child Employment Bill 2005
Costs for Government Implementation
The Bill will introduce a new legislative and policy function for the
Department of Industrial Relations including a new Act and proposed
Regulation, a proposed workplace health and safety Code of Practice for
Children and Young Workers and a proposed Code of Practice for child
employment in the entertainment industry. This will require the Industrial
Relations and Workplace Health and Safety inspectorates to conduct
workplace audits, provide advice and information and monitor and enforce
compliance.
It is estimated that there will be additional costs involved in the
establishment of a specialized unit within the Department of Industrial
Relations to implement, monitor and enforce the legislation. As a result,
additional funding has been provided for those functions with all other
costs of implementation to be met from internal departmental funds.
Fundamental Legislative Principles
Clause 33 (Executive officers must ensure corporation complies with Act)
in the Bill permits the prosecution of executive officers of a corporation
where that corporation has committed an offence. The proposed provisions
provide for a defence but effectively reverse the onus of proof. Such
provisions are commonly included in contemporary legislation and are
considered necessary for the effective enforcement of the legislation by
preventing unscrupulous employers from hiding behind their employees or
their status as a corporation. Having regard to the purpose and nature of the
Bill, the provisions are not considered to be inappropriate.
The Bill is structured in a way that provides for breaches of a regulation
made under it to be offences against the Act. It is presented in this way for
a number of reasons. The department wants, so far as possible, to keep the
prohibition or regulation of work practices in 1 document. It also requires
flexibility and speed to respond to work issues that may arise in relation to
children. This is best achieved by providing for prohibition or regulation of
work practices in the regulation. However, the level of penalty that will
attach to a breach of prohibited or regulated work practices has been set at
100 penalty units in the Bill. In the circumstances, it is considered that the
approach adopted is the one best suited to meet the competing demands of
flexibility and sufficient regard for the institution of Parliament.
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Child Employment Bill 2005
Consultation
Extensive consultation has taken place with key stakeholders from unions,
employer organisations and government in the drafting and preparation of
the Bill. They have expressed support for the Bill.
Notes on Provisions
Part 1 Preliminary
Short Title
Clause 1 sets out the short title of the Act as the Child Employment Act
2005.
Commencement
Clause 2 provides that the Act will commence on a day to be fixed by
proclamation except for Part 7 `Amendment of Industrial Relations Act
1999' which will commence on assent.
Dictionary
Clause 3 provides for particular terms in the Act to be defined in a
Dictionary in the Schedule to the Act.
Purpose of this Act
Clause 4 provides that the purpose of the Act is to safeguard children
working in Queensland by ensuring that work does not interfere with
children's schooling and that children are prevented from performing work
that may be harmful to their health or safety or their physical, mental,
moral or social development.
Children to whom this Act applies
Clause 5 provides that the Act applies to all children under the age of 18
years
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Child Employment Bill 2005
Meaning of parent of a child
Clause 6 defines the term `parent' as a child's mother or father or a person
who exercises parental responsibility for the child. A person exercising
parental responsibility for a child on a temporary basis is not a parent. The
definition also provides that where a person has guardianship of a child
under the Child Protection Act 1999 then that person only is regarded as
the parent of the child. Where guardianship under that Act has not been
granted and a person has parental responsibility for a child by decision or
order of a federal or State court, then that person only is the parent.
Meaning of school-aged child
Clause 7 defines a school-aged child as being a child who is under 16 years
of age and is required to be enrolled in an educational program with a State
educational institution or a non-State school (i.e. compulsory schooling).
As from 1.1.2006 the Education (General Provisions) Act 1989 provides
that a child is no longer of compulsory school age if the child has
completed year ten.
A child who has completed compulsory schooling but is not yet 16 years of
age is not a school-aged child. A child who is 16 years of age or older but
has not yet completed compulsory schooling is not a school-aged child.
Children granted a dispensation from compulsory schooling under the
Education (General Provisions) Act 1989 are not school-aged children.
The term `school-aged child' is frequently used in conjunction with the
term `young child'. A young child is defined in the Dictionary as meaning
a child who is not old enough to be enrolled for compulsory schooling. The
terms are used in conjunction because restrictions and other provisions
usually apply equally to each.
Meaning of work in relation to a child
Clause 8 defines work done by a child. The definition encompasses:
� work done under a contract - whether or not it is a contract of service
(i.e. employment) or at piecework rates - for labour only or
substantially for labour only;
� work done as a supervisor;
� participating or assisting in a business carried on for profit whether or
not payment or other reward is received by the child; and
� unpaid or voluntary work.
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Child Employment Bill 2005
Work done as a bona fide independent subcontractor, as established by a
number of exclusions in the definition, is not included.
Work done as domestic chores is not included in the definition.
Work that is collections work or that is part of an apprenticeship,
traineeship, work experience or vocational placement is also not part of the
definition. Each of these arrangements is defined in the Dictionary by
reference to the legislation that governs them. The Bill is not intended to
impose additional restrictions on work that is already governed by other
legislation.
Part 2 Restrictions to safeguard
working children
Restrictions on work performed by children
Clause 9 provides that an employer must not require or permit a child to do
work that is prohibited or restricted under the proposed Regulation unless
the work is authorised under an Act or a special circumstances certificate.
The proposed Regulation will restrict work by school-aged and young
children in relation to:
� the minimum ages for work and the types of work which may be
performed ;
� the number of hours and times at which work may be performed; and
� other matters such as supervisory requirements at work.
The proposed Regulation will provide that the restrictions do not apply to a
school-aged or young child working in a family business (i.e. a business or
corporation that is wholly owned by a close adult relative).
The clause will also have application to restrictions or prohibitions in
future regulations made in respect of particular types of businesses for
which a regulation making head of power has been included at clause 39 of
the Bill (e.g. the entertainment industry).
Offence penalties are prescribed in respect of an employer who permits or
allows a child to work contrary to the proposed Regulation.
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Child Employment Bill 2005
Authority needed before school-aged or young children can
work
Clause 10 provides that an employer must not require or permit a school-
aged or young child to work without a parent's consent form for the child
or a special circumstances certificate (see clause 12) authorising the child
to perform work, when they are not required to attend school.
This parent's consent form is a form approved by the chief executive of the
Department of Industrial Relations. The parent's consent form must
contain details about when the child is required to be at school, the child's
date of birth, the name of the proposed employer and a statement that the
parent consents to the work.
The requirement for a parent's consent form does not apply in respect of
� work where the employer is the parent of the child, or
� work commenced before the commencement of the Bill.
An offence penalty is prescribed in respect of an employer who requires or
permits a school-aged or young child to work without first gaining a
parent's consent form or a special circumstances certificate.
School-aged children must not work during school hours
Clause 11 prescribes a penalty for an employer that requires or permits a
school-aged child to work when they are required to be at school as
detailed in the parent's consent form or special circumstances certificate.
A parent's consent form is required to be given to an employer within 14
days of a parent becoming aware of a change that occurs in the child's
school hours. This requirement also applies where a consent form has not
been previously given to the employer because the child commenced work
before the commencement of the Bill.
Chief executive officer may authorise a child to do particular
work
Clause 12 sets out a process under which the chief executive (i.e. the
Director-General of the Department of Industrial Relations - see s.33 (11)
of the Acts Interpretation Act 1954) may grant a special circumstances
certificate for a child.
A special circumstances certificate may authorise a child to perform work
that they would otherwise not be permitted to do because of a restriction in
the proposed Regulation. The special circumstances certificate may also
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Child Employment Bill 2005
authorise a child who does not have a parent or who is living independently
from their parents to work without having a parent's consent form when the
child is not required to attend school. The special circumstances certificate
also authorises an employer to permit a child to work under similar
conditions.
An application for a special circumstances certificate may be made either
by a child or an adult on behalf of the child but must be supported by the
child affected by it, include all the information reasonably required by the
chief executive and may be granted subject to specific conditions. A special
circumstances certificate is reviewable at any time.
A special circumstances certificate may only be granted if there are
reasonable grounds for a belief that the work will not interfere with the
child's schooling or will not be harmful to their health or safety or their
physical, mental, moral or social development.
An offence penalty is prescribed for an employer who requires or permits a
child to work in contravention of a special circumstances certificate.
Chief executive may prohibit a child doing particular work or
limit the work the child may do
Clause 13 sets out a process by which the chief executive may issue a work
limitation notice that prohibits or limits particular work that a child would
otherwise be permitted to do. The work limitation notice is issued to an
employer or proposed employer.
A work limitation notice may only be issued if there are reasonable
grounds for a belief that the work will interfere with the child's schooling
or will be harmful to their health or safety or their physical, mental, moral
or social development.
The work limitation notice may be issued on the initiative of the chief
executive or in response to an application but may only be issued after
consideration of any submissions made by the employer or proposed
employer to be affected by it.
A work limitation notice may be reviewed at any time.
An offence penalty is prescribed for an employer who requires or permits a
child to work in contravention of a work limitation notice.
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Child Employment Bill 2005
Certificate or notice to be given or refusal advised
Clause 14 provides that the chief executive must give to all affected persons
(i.e. the child, the child's parent, if they made the application, the child's
employer or proposed employer and any other person believed to have
sufficient interest in the matter) copies of a special circumstances
certificate granted or work limitation notice issued.
Where a special circumstances certificate is not granted, written notice of
the decision is to be given to the affected persons. Where the chief
executive decides not to issue a work limitation notice, the applicant and
the affected employer are to be given written notice of the decision.
Chief executive to give reasons if asked
Clause 15 provides that an affected person may ask the chief executive for
an information notice about their decision within 21 days of being notified
of it. The information notice is defined in the Dictionary as containing the
reasons for the decision and the appeal rights of the affected person.
Part 3 Enforcement
Division 1 Functions of inspector
Inspector's functions
Clause 16 describes the functions of inspectors. These functions are
monitoring compliance, investigating and taking action on contraventions
and informing children and employers about the legislation.
The Dictionary defines inspector as meaning an inspector under the
Industrial Relations Act 1999. Inspectors under that Act will also be
inspectors under this Bill.
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Child Employment Bill 2005
Division 2 Powers of inspector
Inspector's powers
Clause 17 prescribes that inspectors will have all the powers that inspectors
have under the Industrial Relations Act 1999 as well as additional powers
as set out in this division.
Power to seize evidence
Clause 18 provides for the circumstances under which an inspector may
seize a thing at a workplace. These circumstances are where the inspector
reasonably believes that:
� the thing is evidence of an offence against this Act
� the thing is evidence of an offence against this Act and its seizure is
necessary to prevent it being hidden, lost or destroyed or used to
continue or repeat an offence.
� the thing has just been used in committing an offence against this Act.
Securing seized things
Clause 19 provides for the power of an inspector to move a seized thing
from a place or reasonably restrict access to it at the place of seizure. The
Bill gives examples of how access may be restricted.
Tampering with seized things
Clause 20 provides an offence penalty for tampering or attempting to
tamper with a thing to which access has been restricted without an
inspector's approval.
Receipt for seized thing
Clause 21 requires an inspector to give a receipt for a seized thing to the
person from whom it was seized or for a receipt for a seized thing to be left
in a conspicuous position. The receipt must generally describe the thing
and its condition. The requirement to give a receipt is waived where it is
impracticable or unreasonable to do so because of a thing's nature,
condition and value.
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Child Employment Bill 2005
Forfeiture of seized thing
Clause 22 provides that a seized thing is forfeited to the State if its owner
can't reasonably be found or the thing can't reasonably be returned or if
there is a reasonable belief that it is necessary to keep the thing to prevent it
being used to commit further offences.
The owner of the thing must by written notice be told of any decision to
keep the thing if there is a reasonable belief that it is necessary to keep the
thing to prevent it being used to commit further offences.
Return of seized thing
Clause 23 requires that a seized thing that has not been forfeited must be
returned to its owner at the end of 6 months or if a proceeding for an
offence involving it is commenced within 6 months, at the end of
proceedings and appeal from the proceedings. The thing, unless it is
forfeited, must be returned to its owner immediately its continued retention
as evidence ceases to be necessary.
Access to seized thing
Clause 24 provides that unless it is impracticable or unreasonable to do so
and unless the thing is forfeited or returned, the owner of a seized thing
must be allowed to inspect it and, if it is a document, copy it.
Division 3 Proceedings
Proceedings for offences
Clause 25 provides for prosecution of offences under this Act to be taken
before an industrial magistrate in accordance with the Industrial Relations
Act 1999 with any necessary changes. Time limits for the commencement
of a prosecution are prescribed. No limitation is placed on who may
commence proceedings.
Evidentiary provisions
Clause 26 provides that in proceedings under this Act certain
appointments, copies of certificates or notices and authority to accept
service of documents are accepted in evidence or presumed until the
contrary is proven.
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Child Employment Bill 2005
Part 4 Appeals
Appeal from decision of the chief executive
Clause 27 provides that an affected person (mentioned in clause 14) who is
dissatisfied with a decision of the chief executive about a special
circumstances certificate or work limitation notice may appeal the decision
to the industrial commission (the Queensland Industrial Relations
Commission - see s.36 of the Acts Interpretation Act 1954 and s.255 of the
Industrial Relations Act 1999). Appeals are subject to the Industrial
Relations Act 1999 with necessary changes and must be commenced within
the time limits set in this Act unless the industrial commission allows for an
extension of time.
Nature of appeal
Clause 28 provides for an appeal to the industrial commission to be by way
of rehearing on the record but also allows for the hearing of fresh or
additional evidence at the discretion of the commission.
Decision on appeal
Clause 29 provides that in an appeal the industrial commission may
� confirm the original decision;
� allow the appeal, set aside the original decision and substitute another;
or
� allow the appeal, suspend the operation of the original decision and
remit the matter to the chief executive to act according to law.
The industrial commission is given all the same powers as the chief
executive in dealing with the appeal.
Appeal from decision of an Industrial Magistrates Court
Clause 30 provides that a dissatisfied person may appeal to the Industrial
Court against a decision of the Industrial Magistrates Court in relation to
offences against the Act.
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Child Employment Bill 2005
Part 5 General
Chief executive to consult with representative bodies about
guidelines for particular decisions
Clause 31 provides that the chief executive may issue guidelines about
decisions on special circumstances certificates or work limitation notices.
In deciding these guidelines the chief executive may consult with any entity
that may help in the achievement of the purposes of the Act.
Protection from liability
Clause 32 provides an indemnity against civil liability for the chief
executive and inspectors (see definition of `official' in the Dictionary) for
actions done or omissions made honestly and on reasonable grounds under
the Act.
Executive officers must ensure corporation complies with Act
Clause 33 places an obligation on executive officers of corporations to
ensure the corporation complies with the Act. If the corporation commits
an offence, each executive officer also commits an offence. A defence for
an executive officer is provided if it can be proved they took reasonable
steps to ensure compliance by the corporation or if the person was not in a
position to influence the conduct of the corporation in relation to the
offence.
Responsibility for acts or omissions of representatives
Clause 34 provides that in an offence proceeding, an act done or omitted to
be done by a person's representative is also taken to have been done or
omitted to be done by the person. A defence is provided where the person
proves that they could not have prevented the action or omission by the
exercise of reasonable diligence.
False or misleading statements to officials
Clause 35 prescribes an offence penalty for making false or misleading
statements to an inspector or the chief executive.
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Child Employment Bill 2005
False or misleading documents
Clause 36 prescribes an offence penalty for giving false or misleading
documents to an inspector or the chief executive. No offence applies where
the person, when giving the document, tells the inspector or the chief
executive that the document is false or misleading or gives the correct
information.
Delegations
Clause 37 permits the chief executive officer's powers to be delegated to
another appropriately qualified officer of the Department of Industrial
Relations.
Approved forms
Clause 38 provides for the chief executive to approve forms for use under
the Act. The parental consent form mentioned in clauses 10 and 11 would
be such an approved form.
Regulation-making power
Clause 39 provides for the making of regulations by the Governor in
Council. Regulations may be made about:
� Work conditions for children generally.
� Work conditions for children in particular types of businesses. It is
already intended that a code of practice be inserted in the regulation
for children in the entertainment industry (including in adult
entertainment) within the first 12 months after the Act commences.
The provision will also allow for consideration of making regulations
with provisions that are targeted on the particular circumstances of
other specific industries.
� Matters for which fees are payable.
� Records that must be kept by employers about the children they
employ. These records will closely reflect information already
required to be kept for all employees under the Industrial Relations
Act 1999 with additional pieces of information such as the following:
-- The name, address and home and business phone number of a
parent of the child.
-- The name, address and home and business phone number of
another contact person nominated by the child's parent.
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Child Employment Bill 2005
-- For school-aged or young children - a parental consent form as
prescribed by the Bill.
-- For a child who is not a school-aged or young child - a copy of a
form of identification stating the child's date of birth (e.g. a
passport, birth certificate, or school I.D. card).
� Offence penalties for contravention of the regulation.
Part 6 Amendment of Education legislation
Division 1 Amendment of Education (General
Provisions) Act 1989
Act amended in this division
Clause 40 provides that this division amends the Education (General
Provisions) Act 1989.
Amendment of s119 - Employment of children of compulsory
school age
Clause 41 amends section 119(1) to provide that a parent shall not employ
or cause or permit to be employed the parent's child who is of compulsory
school age when the child is required to attend school for the educational
program in which the child is enrolled, unless there is in existence at the
material time, in respect of that child, a dispensation granted in accordance
with section 115(1).
Previously, section 119(1) provided that a parent shall not employ or cause
or permit to be employed during the hours prescribed under a regulation for
attendance at school the parent's child who is of compulsory school age
unless there is in existence at the material time, in respect of that child, a
dispensation granted in accordance with section 115(1).
To avoid confusion between the legislative regime established under the
Child Employment Act 2005 and the Education (General Provisions) Act
1989, this amendment clarifies parent's obligations with regard to the
employment of children of compulsory school age.
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Child Employment Bill 2005
Insertion of new part 14
Clause 42 inserts a new part 14 (Declaratory provision for Child
Employment Act 2005) and new section 171 after part 13. The new section
171(Further amendment, or repeal, of Education (General Provisions)
Regulation 2000) clarifies that the amendment of the Education (General
Provisions) Regulation 2000 by this Act does not affect the power of the
Governor in Council to further amend the regulation or to repeal it.
Division 2 Amendment of Education (General
Provisions) Regulation 2000
Regulation amended in this division
Clause 43 provides that this division amends the Education (General
Provisions) Regulation 2000.
Omission of s20 - Hours during which child of age of
compulsory attendance not to be employed - Act, s119
Clause 44 omits section 20 of the Education (General Provisions)
Regulation 2000. This amendment arises as a result of the amendment to
section 119 of the Education (General Provisions) Act 1989.
Part 7 Amendment of Industrial Relations Act
1999
Act amended in this part
Clause 45 provides that part 7 amends the Industrial Relations Act 1999.
Amendment of s 13 (Payment for annual leave)
Clause 46 provides for the amendment of the last dot point of the formulae
for calculating an annual leave payment using the default average
commission. Dot point three in Section 13 (5) provides that the figure
obtained from making the calculations in accordance with dot points one
and two is to be multiplied by a number of days. The number of days is
obtained by adding up the number of days starting with the day the leave
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Child Employment Bill 2005
commences and ending on the day before the employee is due to return to
work.
Amendment of s 17 (Definitions for pt 2)
Clause 47 inserts two new definitions into section 17. `Parental leave
entitlement' is defined as the entitlements mentioned in sections 18(2), (3)
or (4) and a `short term casual employee' is defined as a casual employee
who is not a long term casual employee. A long term casual employee is
defined in section 15A.
Amendment of s 18 (Entitlement)
Clause 48 inserts a new section 18(5) which provides that parental leave
(long parental leave, short parental leave or adoption leave) must not
extend beyond one year after the child is born or if an application for an
extension of parental leave has been made under section 29A and has been
successful, the total period of parental leave must not extend beyond 2
years after the child was born or adopted.
Replacement of s 29 (Extending period of parental leave)
Clause 49 omits section 29 and inserts new sections 29, 29A, 29B, 29C and
29D.
Extending period of parental leave entitlements by notice
Section 29 provides for an employee to extend the period of parental leave
available under section 18(2), (3) or (4) once only by written notice to the
employer stating when the extended period is to end. The total period of
parental leave under this clause must not extend beyond 1 year after the
child is born or adopted. The agreement of the employer is not necessary
for this extension although the notice must be given at least 14 days before
the leave starts or if it has already started then at least 14 days before it
ends.
Extending period of parental leave by agreement
Section 29A provides a right to an employee to make an application to their
employer to obtain the agreement of the employer to extend the period of
parental leave. Subsection (1) provides for maternity leave available under
section 18(2) to be extended from 52weeks to a maximum of 104 weeks in
total. Subsection (2) provides for short parental leave to be extended to a
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Child Employment Bill 2005
maximum of 8 weeks in total and for long parental leave to be extended to
a maximum of 96 weeks in total.
Subsection (3) provides for short adoption leave to be extended to a
maximum of 8 weeks in total and for long adoption leave to be extended to
a maximum of 96 weeks in total.
Subsection (4) provides that an application to extend the period of parental
leave may only be made once within any period of 12 months unless the
employer agrees otherwise.
Employee on parental leave may apply to work part-time
Section 29B provides a right for an employee on parental leave to apply to
their employer to return to work on a part-time basis. The maximum
period an employee can work part-time under this provision is until the
child reaches school age (section 29C(2)). An application to return to work
on a part time basis may only be made once within any period of 12 months
unless the employer agrees otherwise.
Application for extension or part-time work
Section 29C provides that an application made by the employee to their
employer to extend their parental leave or to return to work on a part-time
basis must be in writing. An employee on short parental leave or short
adoption leave must make the application to the employer at least 2
business days before the leave ends while an employee accessing any other
form of parental leave must make their application to the employer at least
4 weeks before the leave ends. An employee who intends to apply to return
to work part-time must make the application to the employer 7 weeks
before the leave ends.
Subsections (c), (d) and (e) set out the information that must be contained
in the application and subsection (f) sets out the information that must be
provided in a statutory declaration. In the case of an employee accessing
long parental leave or long adoption leave the statutory declaration is about
continuing to be the child's primary care giver and in relation to an
employee applying to return to work on a part-time basis it is about the
employee continuing to be the child's primary caregiver when not at work.
Employees applying to extend short parental leave or short adoption leave
are not required to provide a statutory declaration. The period in relation to
returning to work part-time is up until the child reaches the compulsory
school age.
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Child Employment Bill 2005
Subsection (3) provides that a person may make an application under
sections 29A or 29B even if they commenced their parental leave before
the commencement of the section.
Employer to give proper consideration to application for
extension or part-time work
Section 29D (1) (a), (b) and (c), set out the matters an employer must
consider in relation to an application made by an employee for an extension
of their parental leave or to return to work on a part-time basis. This does
not prevent the employer from considering other relevant matters.
Subsection (2) provides that an employer must not unreasonably refuse an
application made to extend parental leave or to return to work on a part-
time basis.
Subsection (3) provides that the employer must inform the employee, in
writing, of the decision and if the employer refuses the application the
employer must also give written reasons for the refusal (subsection (4)).
Where the employee is on short parental leave or short adoption leave, the
employer must inform the employee of the decision as soon as possible
after receiving the application and certainly before the leave ends. If the
employee is on any other form of parental leave then the employer must
inform the employee of the decision within 14 days after receiving the
application.
Amendment of s 33 (Employer's obligations)
Clause 50 provides for the amendment of the heading of the section to read
`Employer's obligations to advise about parental leave entitlements'
(subsection (1)). Subsection (2) amends section 33 (1)(a) and (1)(b) by
deleting "this part" and substituting "this division" as the section only
applies to parental leave in division 2 and not other divisions contained in
Part 2 of the Industrial Relations Act 1999.
Insertion of new ss 38A-38C
Clause 51 provides for the insertion of new sections 38A, 38B and 38C
after section 38 in Chapter2, part 2, division 2.
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Child Employment Bill 2005
Employer's obligation to advise about significant change in the
workplace
Section 38A (1) applies the section to an employer who has made a
decision to implement significant change at a workplace (whether or not
the decision was made before the commencement of this section provided
it hasn't been implemented. Subsection (2) provides that the employer
must take reasonable action to advise each employee who is absent from
work on parental leave about the proposed change before it is implemented.
The employer must also advise the employee of any effect the proposed
change may have on the position the employee held before going on
parental leave (subsection (3)). An example in relation to the status or level
of responsibility of the position is given.
The employer must also give the employee a reasonable opportunity to
discuss any significant effect the change will have on the employee's
position. Reasonable means reasonable in the particular circumstances.
The employer must advise the employee and provide a reasonable
opportunity for discussion but that is all that is required.
Employee's obligations to advise employer about particular
changes
Section 38B (1) provides that an employee, who is absent on parental
leave, must advise the employer of any change in the employee's contact
details including their address. This information may be required for
various purposes but in particular it is required to enable the employer to be
able to contact the employee should the need arise under section 38A to
advise the employee about any significant change in the work place. The
note to the subsection reflects this position.
Subsection (2) provides that an employee, who is absent on parental leave,
must also take reasonable steps to advise the employer, as soon as possible,
about any significant matter that may affect the length of the employee's
leave, the date the employee's intends to return to work or an earlier
decision to return to work on a full-time basis or to apply to return to work
on a part-time basis.
Review of Ss 29A - 29D
Section 38C (1) provides for a review, of sections 29A, 29B, 29C and 29D
about extending parental leave and returning to work on a part-time basis,
by the Full Bench of the Queensland Industrial Relations Commission
(QIRC) of it's own initiative or on the direction of the Minister. In the
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Child Employment Bill 2005
absence of a direction by the Minister, the Full Bench is to start the review
within 3 years after the commencement of the section (subsection (2)) and
must consider if the sections are meeting the reasonable needs of
employees and the impact, if any, they are having on the ability of
employers to conduct their businesses efficiently (subsection (3)).
Subsection (4) provides that the Full Bench must report its findings and
make recommendations to the Minister. It will then be a matter for the
Minister to determine what action, if any, may be required in relation to the
operation of the sections.
Replacement of s 39 (Entitlement)
Clause 52 provides for the replacement of section 39 with new sections 39,
39A, 39B and 39C.
Employee's entitlement to carer's leave
Section 39(1) provides that an employee is entitled to use up to 10 days
(carer's leave), previously 5 days, of their sick leave entitlement in each
year to care and support members of the employee's immediate family or
household when they are ill or because of an unexpected emergency (such
as an unexpected failure of child care arrangements).
For the Industrial Relations Act 1999, `immediate family' is defined to
include, and so is not limited to, the employee's spouse; a child, ex-nuptial
child, stepchild, adopted child, ex-foster child, parent, grandparent,
grandchild or sibling of the employee or employee's spouse. The word
`household' is not defined and would have its ordinary meaning.
Subsection (2) provides that if an employee has exhausted their entitlement
to carer's leave under (1) they may take up to an additional 2 days per
occasion of unpaid carer's leave to care and support members of their
immediate family or household who are ill or because of an unexpected
emergency.
Subsection (3) provides that in addition to the unpaid carer's leave in
subsection (2) the employee may take additional unpaid carer's leave if the
employer agrees.
Subsection (4) provides that an employee can not take carer's leave if
another person has taken leave to care for the same person unless there are
special circumstances which require more than 1 person to care for the
person.
Subsection (5) clarifies that carer's leave may be taken for part of a day.
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Child Employment Bill 2005
Subsection (6) defines `employee' for this section not to include a casual
employee as there are specific sections applying to casual employees (short
term and long term) and defines `sick leave' to include sick leave accrued
before the commencement of this section.
Long term casual employee's entitlement to carer's leave
Section 39A (1) provides that a long term casual employee is entitled to
take up to 10 days leave (also carer's leave), previously 5 days, in each year
to care and support members of the employee's immediate family or
household when they are ill or because of an unexpected emergency (such
as an unexpected failure of child care arrangements). A casual employee is
not entitled to sick leave and so would have no sick leave to access for this
purpose. All carer's leave is unpaid.
Subsection (2) provides for a long term casual employee to take additional
unpaid carer's leave if the employer agrees.
Subsection (3) provides that a long term casual employee can not take
care's leave if another person has taken leave to care for the same person
unless there are special circumstances which require more than 1 person to
care for the person.
Subsection (4) clarifies that carer's leave may be taken for part of a day.
Subsection (5) provides that an employer must not penalise a long term
casual employee by failing to re-engage the long term casual employee
only because he/she accessed carer's leave under this section. A long term
casual employee would be able to make an application for unfair dismissal
under section 73, as a long term casual employee is not excluded from
making such an application.
Subsection (6) provides that this section does not affect any other rights the
employer may have not to re-engage the long term casual employee.
Short term casual employee's entitlement to carer's leave
Section 39B (1) provides that a short term casual employee is entitled to
leave work or be unavailable to attend work for up to 2 days (also carer's
leave) on each occasion he/she is required to care and support members of
the employee's immediate family or household when they are ill or because
of an unexpected emergency (such as an unexpected failure of child care
arrangements) or because of the birth of a child. A casual employee is not
eligible for sick leave and so would have no sick leave to access for this
purpose. All carer's leave is unpaid. A short term casual employee is not
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Child Employment Bill 2005
eligible for parental leave and so would not have access to parental leave
for the birth of a child. All carer's leave is unpaid.
Subsection (2) provides that if a short term casual employee has exhausted
their entitlement to carer's leave under subsection (1) they may leave work
or be unavailable to attend work for the reasons mentioned in (1) for
additional periods if the employer agrees.
Subsection (3) provides that a short term casual employee can not take
care's leave if another person has taken leave to care for the same person
unless there are special circumstances which require more than 1 person to
care for the person.
Subsection (4) clarifies that carer's leave may be taken for part of a day.
Subsection (5) provides that an employer must not penalise a short term
casual employee by failing to re-engage the short term casual employee
only because he/she accessed carer's leave under this section. A short term
casual employee would be able to make an application for unfair dismissal
under section 73, as a short term casual employee is not excluded from
making such an application for unfair dismissal where the dismissal was
for an invalid reason and the new section 73(2)(ka) makes dismissal for this
reason an invalid reason.
Subsection (6) provides that this section does not affect any other rights the
employer may have not to re-engage the short term casual employee.
Subsection (7) clarifies that all leave taken is unpaid.
Employees etc. to provide supporting information to employer
Section 39C (1) provides that, if required by the employer, an employee
wishing to access carer's leave must provide a doctor's certificate or a
statutory declaration about the illness and the need for the ill member of the
employee's immediate family or household to be cared for by another
person.
Subsection (2) provides that, if practicable, the employee must give the
employer notice of the intention to take carer's leave before taking it and
give the name of the person requiring care and the person's relationship to
the employee and the reason for taking the leave and the estimated period
of absence and, if the reason is an unexpected emergency, the nature of the
emergency.
Subsection (3) provides that if it is not practicable to notify the employer
before taking the leave then the employee must notify the employer at the
first reasonable opportunity.
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Child Employment Bill 2005
Amendment of s 40 (Entitlements)
Clause 53 provides for the amendment of section 40. Section 40(1)
provides that only piece workers are excluded from accessing bereavement
leave as short term casuals will now be able to access the leave.
Subsection (2) amends section 40(2) by adding `or short term casual
employee' after `long term casual employee'.
Subsection (3) renumbers Ss 40(4) and (5) as (5) and (6).
Subsection (3) inserts a new (4) in Section 40 which provides for a short
term casual employees to be unavailable to attend work for up to 2 days on
unpaid bereavement leave because of the death of a member of the person's
immediate family or household together with any extra time reasonably
required for the person to travel to and from the funeral or other ceremony
for the death. All `leave' is unpaid and applies to a death in or out of
Australia.
Subsection (4) inserts new subsections (7) and (8).
Subsection (7) provides that an employer must not penalise a casual
employee by failing to re-engage the employee only because he/she
accessed bereavement leave under this section. A short term casual
employee would be able to make an application for unfair dismissal under
section 73, as a short term casual employee is not excluded from making
such an application for unfair dismissal where the dismissal was for an
invalid reason and the new section 73(2)(ka) makes dismissal for this
reason an invalid reason.
Subsection (8) provides that this section does not affect any other rights the
employer may have not to re-engage a casual employee.
Amendment of s 71A (Minimum period of notice required from
employee under particular instrument, federal award or federal
agreement)
Clause 54 provides for the amendment of 71A by inserting a new
subsection (2) which ensures that an employee, apprentice or trainee
mentioned in section 72(3) or (7) does not have to comply with the notice
provisions of section 71A. Subsection (1) provides for renumbering of the
section and subsection (3) substitutes `subsection (3)' for `subsection (2)'
in the renumbered subsection (4).
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Child Employment Bill 2005
Amendment of s 73 (When is a dismissal unfair)
Clause 55 provides for the insertion in section 73 of another `invalid
reason' for dismissal. This invalid reason is a reason mentioned in section
39B(5) or 40(7) which sections are about an employer not re-engaging
(dismissing) a short term casual employee only because he/she has
accessed carer's leave or bereavement leave.
Amendment of s350 (Appointment of inspectors)
Clause 56 amends section 350(4) of the Industrial Relations Act 1999 to
provide that when an inspector holds an appointment under that Act they
are also an inspector under the Child Employment Act 2005.
Amendment of s352 (Powers)
Clause 57 amends section 352 of the Industrial Relations Act 1999 to add a
new subclause 4. The new subclause provides that when an inspector
exercises powers under that Act while acting as an inspector under the
Child Employment Act 2005 (see clause 17), the terms `employee' and
`employer' are modified to accord with the purpose and other provisions of
the Child Employment Act 2005.
Insertion of new Chapter 20, Part 5
Clause 58 inserts a new Part 5 in Chapter 20
Part 5 Transitional provision for Child
Employment Act 2005
Provision for agreed extensions of parental leave
Section 739 provides that any agreement made between an employee and
an employer under the section 29, that applied before these amendments
commenced, to extend the period of parental leave under the section 18,
that applied before these amendments commenced, is not affected by these
amendments. It also defines `new section 29' and `old section 18'.
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Child Employment Bill 2005
Amendment of sch 5 (Dictionary)
Clause 59 inserts the definitions for `parental leave entitlement' and `short
term casual employee' in schedule 5.
Schedule Dictionary
The dictionary provides the meaning of various terms used in this Act.
� State of Queensland 2005