Part 1 Preliminary
1 Name of Regulation
This Regulation is the Children and Young Persons (Care and Protection) (Child Employment) Regulation 2015.
2 Commencement
This Regulation commences on 17 December 2015 and is required to be published on the NSW legislation website.Note—This Regulation repeals and replaces the Children and Young Persons (Care and Protection) (Child Employment) Regulation 2010, which would otherwise be repealed on 1 September 2016 by section 10 (2) of the Subordinate Legislation Act 1989.
3 Definitions
(1) In this Regulation:child has the same meaning as in section 221 (1) of the Act.Code of Practice—see clause 11.employment has the same meaning as in section 221 (1) of the Act.performance activities includes modelling, promotional work, performance art, public speaking, public performance and any other similar activity.performer representative means a performer representative within the meaning of section 5 of the Entertainment Industry Act 2013.preparatory activities means activities connected to services rendered by a child, including rehearsals, wardrobe fittings, the making of sound recordings and publicity activities.regulated activity means an activity for which an employer’s authority is required under section 223 (1) of the Act.Note—This means employment of a child in an entertainment or exhibition, a performance that is recorded for use in a subsequent entertainment or exhibition, offering something for sale door-to-door, a still photographic session, a preparatory activity or a performance activity.student means a person currently enrolled in a tertiary course in film, television, radio, theatre or photography at a university or that is accredited by the Australian Skills Quality Authority.the Act means the Children and Young Persons (Care and Protection) Act 1998.week means a period of 7 days commencing on a Monday and ending on a Sunday.(2) Notes included in this Regulation do not form part of this Regulation.
Part 2 Employers, employer’s authorities and exemptions
4 Persons who are taken to employ children
(1) A person who is responsible for the direction of children who are taking part in a regulated activity is taken to employ the children for the purposes of section 221 (2) (a) of the Act if:(a) the person makes a payment, or agrees to make a future payment (whether or not that future payment is contingent on certain circumstances) to any person for any one of those children taking part in the activity, or(b) the person is a student and the activity occurs because of a requirement of the person’s studies.(2) A performer representative who arranges for a child to take part in a regulated activity is taken to employ the child to take part in that activity for the purposes of section 221 (2) (a) of the Act.(3) In this clause:payment made to a person includes any material benefit conferred on the person.
5 Activities for which employer’s authority required
For the purposes of section 223 (1) (d) of the Act, the following are prescribed as things with respect to which an employer’s authority is required:(a) a child taking part in a still photographic session,(b) a child taking part in a preparatory activity,(c) a child taking part in a performance activity.
6 Exemptions from requirement to hold employer’s authority
(1) For the purposes of section 224 (1) (c) of the Act, a person is exempt from being required to hold an employer’s authority in respect of the employment of a child in the following circumstances:(a) the child is more than 10 years old and the employment is outside school hours and for no more than 10 hours per week,(b) the child is a national of a foreign country who is employed in connection with the conduct of a regulated activity under the auspices of the government of the foreign country.(2) For the purposes of section 224 (1) (c) of the Act, a person who is acting in the sole capacity of a performer representative of a child is exempt from being required to hold an employer’s authority in respect of the employment of the child.(3) For the purposes of section 224 (5) (b) of the Act, the Children’s Guardian may revoke any exemption granted under this clause.
7 Conditions of employer’s authority and exemptions
It is a condition of an employer’s authority and a condition of an exemption from the requirement to hold an employer’s authority that the employer will provide to the Children’s Guardian such information concerning the employment of children by the employer as the Children’s Guardian may reasonably require.
8 Fees payable in respect of employer’s authorities
(1) For the purposes of clause 1 (1) of Schedule 2 to the Act, the fee for an application for an employer’s authority to employ a child to take part in any regulated activity is:(a) for an employer’s authority in force for up to 12 months—$2,400, or(b) for an employer’s authority in force for up to 6 months—$2,040, or(c) for an employer’s authority in force for up to 3 months—$1,830, or(d) for an employer’s authority in force for up to 1 week—$200.(2) However, the fee for an application for an employer’s authority to employ a child to take part only in a still photographic session or door-to-door sales is:(a) for an employer’s authority in force for up to 12 months—$1,075, or(b) for an employer’s authority in force for up to 6 months—$914, or(c) for an employer’s authority in force for up to 3 months—$806, or(d) for an employer’s authority in force for 1 week—$100.(3) Despite subclauses (1) and (2), a fee for an application for an employer’s authority is not required if the employer is a student.
Part 3 Employer’s obligations
9 Definitions
In this Part:employer means a person who employs a child to take part in a regulated activity.performer representative means a person who is an employer solely because of clause 4 (2).Note—A person who is a performer representative may also be an employer if the person directly employs children.
10 Employers must comply with Part
(1) It is a condition of an employer’s authority that the employer comply with this Part.Note—A failure to comply with a condition of an employer authority is an offence under section 223 of the Act.(2) It is a condition of an exemption under clause 6 from the requirement to hold an employer’s authority that the employer comply with this Part.Note—This subclause only applies to employers who are exempt from holding an employer’s authority in the circumstances set out in clause 6 (1) or if the person is acting in the sole capacity of a performer representative (clause 6 (2)).(3) An employer who fails to comply with a condition referred to in subclause (2) is guilty of an offence.Maximum penalty: 10 penalty units.
11 Code of Practice
(1) In this Regulation, Code of Practice means the Code of Practice set out in Schedule 1.(2) The Children’s Guardian may approve a modification to the Code of Practice in respect of its application to an employer or class of employers. If such a modification is approved, a reference in this Regulation to the Code of Practice in relation to the employer or class of employers is taken to be a reference to the Code of Practice as modified.
12 Compliance with Code of Practice
(1) An employer (other than a performer representative) must:(a) comply with the requirements of the Code of Practice in respect of the child’s employment, and(b) use the employer’s best endeavours to ensure that all persons under the employer’s control comply with the requirements of the Code of Practice in respect of the child’s employment.(2) A performer representative:(a) must comply with the requirements of clause 3 of the Code of Practice in respect of the child’s employment, and(b) must use the performer representative’s best endeavours to ensure that all persons under the performer representative’s control comply with the requirements of clause 3 of the Code of Practice in respect of the child’s employment, and(c) must not cause or procure a child to be employed if the performer representative knows (or would be reasonably expected to know) that the child will be employed in contravention of clause 17 (1), (2), (5) or (7) of the Code of Practice.(3) An employer (other than a performer representative) must ensure that a copy of the Code of Practice, or a document explaining the Code of Practice in a form approved by the Children’s Guardian from time to time, is given to a parent of the child before the child commences employment.
13 Code of Conduct
(1) An employer (other than a performer representative) must prepare a Code of Conduct in a form approved by the Children’s Guardian setting out best practice guidelines for the care and protection of children employed by the employer.(2) The employer must provide each employee of the employer (and, if the employee is a child, the parents of the employee) with a copy of the Code of Conduct before the employee or the parent has contact with any other child employed by the employer.
Part 4 Miscellaneous
14 Penalty notices
For the purposes of section 259A (1) of the Act:(a) each offence arising under a provision specified in Column 1 of Schedule 2 is prescribed as a penalty notice offence, and(b) the prescribed penalty for such an offence is the amount specified in relation to the offence in Column 2 of Schedule 2 opposite the relevant provision.
15 Repeal and savings
(1) The Children and Young Persons (Care and Protection) (Child Employment) Regulation 2010 is repealed.(2) Any act, matter or thing that, immediately before the repeal of the Children and Young Persons (Care and Protection) (Child Employment) Regulation 2010, had effect under that Regulation continues to have effect under this Regulation.
Schedule 1 Code of Practice
(Clause 11 (1))
Note—
An employer, other than a performer representative, must comply with each of the requirements of this Code of Practice in respect of each child employed by that employer. A performer representative must comply with clause 3 of this Code of Practice in respect of each child employed by that performer representative. Clause 4 (2) of this Regulation provides that a performer representative who arranges for a child to take part in a regulated activity is taken to employ the child to take part in that activity.
Part 1 General
1 Objects of Code of Practice
The objects of this Code of Practice are as follows:(a) to protect children in employment from exploitation and abuse and prevent inappropriate or unreasonable demands being made of them,(b) to ensure that employers take responsibility for employed children’s interactions with adults while the children are engaged in regulated activities,(c) to ensure that children are provided with a safe environment in which to work.
2 Definition
In this Code of Practice:parent’s nominee, in relation to a child, means an adult authorised by name in writing by the parent of the child for the purposes of the clause in which the expression is used, and includes a person nominated under clause 3 (2) (c).
3 Record keeping
(1) A record must be kept for each child.(2) The record must include the following particulars:(a) the name, address and personal telephone number (if any) of the child,(b) the name, address and both personal and business telephone numbers (if any) of the child’s parents,(c) the name, address and both personal and business telephone numbers (if any) of some other person nominated by the child’s parents as being a person responsible for the child in the event of the parents being unavailable,(d) the child’s date of birth,(e) the nature of the work that the child is employed to carry out,(f) in the case of a child for whose employment a consent is required by or under any Act or law—particulars of any consent so given,(g) the dates and times of each occasion on which the child is employed,(h) particulars of the place of work or location at which the child is employed on each such occasion,(i) the reference number of the employer’s authority applying to each such occasion,(j) the name, address and both personal and business telephone numbers (if any) of the child’s supervisor on each such occasion.(3) The record must be:(a) kept for a minimum period of 6 years, and(b) kept securely, and(c) made available for inspection by an inspector appointed by the Children’s Guardian.(4) The employer must, if required by the Children’s Guardian by notice in writing, provide a copy of the record, or such additional or other information as specified in the notice, to the Children’s Guardian within the time specified in the notice.
4 Incident register
(1) An incident register must be maintained in a form approved by the Children’s Guardian.(2) An incident register required to be kept under this clause is to record details in relation to each child employed by the employer of any of the following incidents that occur in the course of the child’s employment:(a) an accident involving the child,(b) an injury to the child,(c) an incident that is the subject of a complaint made by the child or a parent of the child or the parent’s nominee in relation to the employment,Note—Examples of complaints that should be recorded in an incident register include complaints relating to the contract of employment, such as not being paid for services, and more serious complaints, such as allegations of physical abuse or sexual misconduct occurring in the course of the child’s employment.(d) an event or circumstances involving a breach of this Code of Practice.(3) A record of the incident must also contain the following information:(a) the name of the child involved in the incident,(b) the time, date and place the incident occurred,(c) details of any action taken in response to the incident.(4) A record of an incident must be made, and a copy of the record provided to the Children’s Guardian, within 72 hours of the employer being made aware of the incident occurring.(5) A record of an incident entered in the incident register must be kept securely for a period of 6 years from the date on which the incident occurred.
5 Notice of work locations and risk management strategies
(1) A child must not be employed at any time at any place of work or location unless the Children’s Guardian has been given at least 7 days’ notice (or such lesser notice as the Children’s Guardian may, in a particular case or class of cases, allow) of the employer’s intention to employ the child at that place of work or location and specifying the address of the place of work or details of the location, and the period during which the child will be employed at that place or location.(2) The notice must also contain details of the following:(a) any risks that can reasonably be identified by the employer existing in connection with the employment of the child, including risks associated with employing the child at the proposed place of work or location and risks associated with the child’s proposed role or employment schedule,(b) the strategies, in a form approved by the Children’s Guardian, that the employer proposes to adopt to minimise the risks identified in paragraph (a),(c) any modifications to this Code of Practice sought by the employer.
6 Insurance
(1) A child must be covered by a policy of personal accident insurance with benefits for injuries no less than those payable for the same injuries under the Workers Compensation Act 1987 or the Workplace Injury Management and Workers Compensation Act 1998.(2) This clause does not apply in relation to any child in respect of whom compensation for injury is the subject of injury insurance effected in accordance with the Workers Compensation Act 1987 or the Workplace Injury Management and Workers Compensation Act 1998.
7 Punishment prohibited
A child must not be subjected to any form of corporal punishment, social isolation, immobilisation or any other behaviour likely to humiliate or frighten the child.
8 Parental contact
A child must at all times be able to make contact with a parent, or the person nominated under clause 3 (2) (c), and the employer must facilitate the making of any such contact whenever the child so requests or whenever it is otherwise appropriate to do so in the interests of the child.
9 Schooling requirements
A child of compulsory school-age (within the meaning of the Education Act 1990) must not be employed during hours of normal school attendance unless:(a) the employment is for a period during which the child is not required to attend school pursuant to the approval of the principal of the school that the child attends or the Secretary of the Department of Education, or(b) the child is enrolled at a school to undertake courses of study by means of distance education, or(c) the child is registered for home schooling under Division 2 of Part 7 of the Education Act 1990 and the employment is permitted by the conditions to which that registration is subject.
10 Travel
(1) A child must be taken home by the child’s parent or the parent’s nominee after the child finishes work unless:(a) the child is more than 12 years old, and(b) the distance between work and home is less than 10 kilometres, and(c) travel home will be by public transport and will be completed within daylight hours.(2) A child’s journey home must commence within 30 minutes after the child finishes work unless the child is accompanied by a parent of the child or the parent’s nominee.
11 Food and drink
(1) A child must be provided at reasonable hours during the child’s employment with food that is varied, sufficient, nutritious and appropriate having regard to the age, taste and culture of the child.(2) Water or fruit juice, or other nutritious drinks, must be readily available to the child at all times during the child’s employment.
12 Toilet facilities
A child must have access to clean and easily accessible toilet, hand-washing and hand-drying facilities at the place of work while the child is employed.
13 Protection from the elements
A child must be adequately clothed and otherwise protected from extremes of climate while the child is being employed.
14 Notification of illness or injury
In the event of a child being injured or becoming ill in the course of the child’s employment, or appearing to the employer to become ill, or the child reporting to be feeling ill in the course of the child’s employment, at least one parent of the child must be immediately notified of that fact.
15 Industrial instruments or agreements
If there is any inconsistency between a provision of this Code of Practice and a provision of any industrial instrument or agreement that applies to a child, then the provision of the instrument or agreement prevails if it is more beneficial to the child than the provision of this Code of Practice.Note—Section 9B (2) of the Industrial Relations Act 1996 provides that a reference in any Act or instrument to an industrial instrument or agreement (however described) includes a reference to a relevant federal industrial instrument or agreement.
Part 2 Hours of work
16 Calculation of employment
A child’s total period of employment during any period of 24 hours is to be calculated as if the following periods formed part of the time for which the child is employed:(a) any time in excess of 90 minutes spent by the child in travelling from home to the place of work,(b) if the employer (including any performer representative) is responsible for bringing the child to work, any time between the child’s arrival at the place of work and the child’s actual commencement of work,(c) the whole of the time that the child is required to be at work excluding any rest break required by clause 17 (4) (b) or a rest break:(i) that is required by a provision of an industrial instrument or agreement, being a provision that prevails over this Code of Practice because of clause 15, and(ii) that the industrial instrument or agreement provides is not to be counted as part of the total number of hours worked,(d) time spent in preparatory activities,(e) any time in excess of 90 minutes spent by the child in travelling home from the final place of work,(f) if the employer (including any performer representative) is responsible for taking the child home from work, any time between the child’s finishing work and the start of the child’s journey home from work.
17 General limitations on hours of work
(1) A child must not be employed for more than one shift on any one day.(2) A child must not be employed for more than 5 consecutive days.(3) Despite clauses 18–20, a child must not be employed for more than 4 hours on any day on which the child receives schooling.Note—Clauses 18–20 set out the maximum hours that may be worked on days other than days on which a child receives schooling.(4) A child must be given:(a) within any 4-hour period—an appropriate number of rest breaks, of an appropriate duration, taking into account the age and needs of the child and the nature of the work the child is engaged in, and(b) a 1-hour rest break every 4 hours.(5) A child must not start work with an employer less than 12 hours after the child has previously finished work, whether for that employer or another employer.(6) A child must not work later than 9.00 pm on any day if the child is to receive schooling on the following day.(7) The total period of time for which a child is employed during any week, when added to the time that the child receives schooling during that week, must not exceed 50 hours.(8) For the purposes of calculating periods of time under this clause, the child’s involvement in preparatory activities is to be included.
18 Limitations on hours of work—entertainment or exhibitions
(1) This clause applies to the employment of a child with respect to film, television, radio or shopping centre performances, still photography, the production of images for broadcasting, modelling or other exhibitions.(2) A child must not be employed in employment to which this clause applies otherwise than in accordance with the following table:
19 Limitations on hours of work—live performances
(1) This clause applies to the employment of a child with respect to live performances (including theatrical, musical and circus performances) other than a performance referred to in clause 18.(2) A child must not be employed in employment to which this clause applies otherwise than in accordance with the following table:
20 Limitations on hours of work—door-to-door sales
(1) This clause applies to the employment of a child in door-to-door sales.(2) A child must not be employed:(a) for more than 6 hours on any day, and(b) for more than 5 days per week, and(c) before sunrise or 6.30 am, whichever is the later, and(d) later than sunset or 6.00 pm, whichever is the earlier.
Part 3 Regulated activities other than door-to-door sales
Division 1 General
21 Application of Part
This Part applies to the employment of a child to take part in a regulated activity other than the employment of a child in door-to-door sales.
22 Supervision
(1) A child must be provided during the child’s employment with appropriate supervision, having regard to the child’s age, sex and degree of maturity.(2) In particular:(a) the child is to be accompanied by a parent or the parent’s nominee whenever the child is travelling between home and the place of work or between places of work, and(b) if the child’s employment requires him or her to spend one or more nights away from home, appropriate accommodation must be provided for both the child and a parent or the parent’s nominee, and(c) if the child is less than 6 years old, the child is to be supervised:(i) by a parent or the parent’s nominee, or(ii) by the holder of a child care certificate or a certificate of child care studies, or(iii) by a registered nurse or registered midwife, and(d) if the child is more than 6 years old, the child is to be supervised by a parent or the parent’s nominee or by an adult with training or experience in the care of children of the age of the child to be supervised, and(e) the child must be in view of the person supervising the child at all times.(3) Subclause (2) (a) does not require a child to be accompanied when the child is travelling between home and a place of work or between places of work if:(a) the child is more than 12 years old, and(b) the distance to be travelled is less than 10 kilometres, and(c) the travel will be by public transport and will be completed within daylight hours.(4) A supervisor must not supervise at any one time more than:(a) if any of the children are under 3 years old—2 children, or(b) if any of the children are between 3 and 5 years old—5 children, or(c) if all of the children are more than 5 years old—10 children.(5) A supervisor must not have any other responsibilities while supervising children.
23 Recreation facilities
A child must be provided with appropriate recreational materials and rest facilities during breaks in work, having regard to the age and circumstances of the child.
24 Dressing room facilities
A child must be provided with appropriate facilities to enable him or her to dress and undress in private.
25 Work directions
(1) Before a child is cast in a role or situation, the employer must fully inform the child and a parent of the child of the nature of the role or situation and must take into account any comments of the child or the parent.(2) A child must not be cast in a role or situation that is inappropriate for him or her, having regard to the child’s age, maturity, emotional or psychological development and sensitivity.(3) A child must not:(a) be exposed to scenes that are likely to cause distress to the child, or(b) be allowed to become distressed for the purpose of obtaining a more realistic depiction of a particular emotion or reaction.(4) A child must not be employed in any situation in which the genital area, buttocks or (in the case of a female) the breasts of the child or any other person are exposed.
26 Children less than 3 years old
A child who is less than 3 years old must not be employed unless:(a) a registered nurse or registered midwife is present at all times, and(b) the registered nurse or registered midwife advises the employer the child is suitable for employment, and(c) the registered nurse or registered midwife advises the employer that the environment in which the child is to be employed (including, in particular, the lighting and the temperature) will not cause the child to become distressed, and(d) the employer follows the advice of the registered nurse or registered midwife in all matters (such as the provision of nursing and care of the child and the use of make-up) that relate to the welfare of the child.
Division 2 Babies under 12 weeks of age
27 Application
This Division applies to babies who are less than 12 weeks old.
28 Employment requires express authority
A baby must not be employed unless the conditions of the employer’s authority expressly authorise such employment.
29 Registered nurse or registered midwife to be present
(1) A baby must not be employed unless:(a) a registered nurse or registered midwife is present at all times, and(b) the registered nurse or registered midwife advises the employer that the baby is suitable for employment, and(c) the registered nurse or registered midwife advises the employer that the environment in which the baby is to be employed (including, in particular, the lighting and the temperature) will not cause the baby to become distressed, and(d) the employer follows the advice of the registered nurse or registered midwife in all matters (such as the provision of nursing and care of the baby and the use of make-up) that relate to the welfare of the baby.(2) The registered nurse or registered midwife must not advise that a baby is suitable for employment unless that nurse or midwife is satisfied of the following:(a) the baby was delivered full term and in good health,(b) the baby’s birth weight was at least 3.0 kilograms,(c) the baby has not had any post-natal problems,(d) the baby is feeding successfully,(e) the baby’s weight gain from birth has been satisfactory.
30 Direct lighting not to be used
A baby must not be exposed to direct lighting in the course of the baby’s employment.
31 Use of make-up
Make-up must not be applied to a baby in the course of the baby’s employment unless the make-up is non-irritating and uncontaminated.
32 Handling
The baby must not be handled by more than 4 people (including the baby’s parent and the registered nurse or registered midwife) during any single period of employment.
33 Segregation from persons suffering respiratory or skin infections
A person who has a respiratory or skin infection must not be allowed to come into contact with the baby in the course of the baby’s employment.
Part 4 Door-to-door sales
34 Application of Part
This Part applies to the employment of a child in door-to-door sales.
35 Minimum age for children employed in door-to-door sales
A child must not be employed unless the child is aged at least 14 years and 9 months.
36 Entry to motor vehicles and private homes prohibited
A child must not be permitted or required to sell any item to a person in a motor vehicle or to enter a private dwelling during the door-to-door sale of items.
37 Children must work in company
(1) A child must work in the company of at least one other person, at least one of whom is an adult, and the child must be provided with clear indication, by means of identification badges or distinctive clothing, of the business name of the employer.(2) An adult accompanying the child under subclause (1) may be the same person who is the child’s supervisor under clause 38.
38 Supervision
(1) A child must be provided with appropriate supervision, having regard to the child’s age, sex and degree of maturity, while employed in door-to-door sales.(2) While the child is employed in door-to-door sales, a supervisor must:(a) remain at all times in the general vicinity of the child, and(b) make contact with the child at intervals of not more than 30 minutes, and(c) know the whereabouts of the child at all times.(3) A supervisor must not supervise more than 6 children at any one time.(4) A child must be accompanied by a parent or by the parent’s nominee whenever the child is travelling between home and the place of work or between places of work.(5) If the child’s employment requires him or her to spend one or more nights away from home, appropriate accommodation must be provided for both the child and the child’s parent or the parent’s nominee.
Schedule 2 Penalty notice offences
(Clause 14)
Column 1 | Column 2 |
Provision | Penalty $ |
Offence under the Act | |
section 223 (other than for a breach of the condition prescribed by clause 10 (1) of this Regulation) | 5,500 |
section 223 in respect of a breach of the condition prescribed by clause 10 (1) of this Regulation where the breach occurs because of a failure to comply with clause 12 (3) | 110 |
section 223 in respect of a breach of the condition prescribed by clause 10 (1) of this Regulation where the breach occurs because of a failure to comply with clause 13 | 110 |
section 223 in respect of a breach of the condition prescribed by clause 10 (1) of this Regulation where the breach occurs because of a failure to comply with any of the following provisions of the Code of Practice: | |
(a) clauses 7, 8, 22 (1), (4) and (5), 24, 25 and 35–38 | 1,100 |
(b) clauses 5, 9, 26, 28, 29 (1) and 30–33 | 550 |
(c) clauses 17–20 | 330 |
(d) clauses 13 and 14 | 220 |
(e) any provision not specified in paragraphs (a)–(d) | 110 |
Offences under this Regulation | |
clause 10 (3) in respect of a failure to comply with clause 12 (3) | 110 |
clause 10 (3) in respect of a failure to comply with clause 13 | 110 |
clause 10 (3) in respect of a failure to comply with any of the following provisions of the Code of Practice: | |
(a) clauses 7, 8, 22 (1), (4) and (5), 24, 25 and 35–38 | 1,100 |
(b) clauses 5, 9, 26, 28, 29 (1) and 30–33 | 550 |
(c) clauses 17–20 | 330 |
(d) clauses 13 and 14 | 220 |
(e) any provision not specified in paragraphs (a)–(d) | 110 |