Constitutional corporations - Minimum employment conditions and dismissal of children
Amendments to the Child Employment Act 2006 (PDF, 619 KB) become operative from 28 May 2007.
Minimum employment conditions
Dismissal
Minimum employment conditions
Who is affected?
These amendments apply to children under the age of 18 years,
- who are employed by a constitutional corporation
- who work under a federal agreement or other common law arrangement
- which started after 26 March 2006.
Further information on who is affected by the changes to dismissal laws for children is available under the 'Dismissal' section below.
The law about minimum employment conditions aims to reduce disadvantage to a child worker where the agreement or arrangement they work under reduces their employment entitlements or protections (see "What must an affected employer do?").
Where a child is or was employed by a constitutional corporation on or after 28 May 2007, the law applies if they are employed under:
- An agreement under the Workplace Relations Act 1996 (Cwlth) entered into after 26 March 2006,
- An arrangement entered into after 26 March 2006 that is not an agreement as above (e.g. common law arrangement like a collective deed, individual contract of employment, exchange of letter or implied contract),
- A preserved collective State agreement under the Workplace Relations Act 1996 (Cwlth) that has been terminated and not replaced by an agreement referred to in the points above, and
If a child is employed by a constitutional corporation under any of the above circumstances, the minimum employment conditions requirement applies where:
- A State award or order is in force that covers employees who perform similar work to that performed by the child employed by an affected employer, or
- Entitlements or protections under the Industrial Relations Act 1999 (PDF, 1.9 MB) cover people who are not employed by a constitutional corporation and perform similar work to that performed by the child. These entitlements include:
- Chapter 2 general employment conditions like minimum wage, working time, overtime, rest pauses, public holidays, types of leave (sick, career’s, annual, family bereavement, cultural)
- the above conditions under the Act reviewed and altered by general ruling of the full bench of the QIRC,
- redundancy payments covered by Chapter 3 Part 4 Division 1AA
Who is not affected by the amendments?
These laws do not apply to:
- Children employed under notional agreements preserving state awards or preserved state agreements which commenced under the federal government’s workplace relations laws (non-Queensland Government link) on 27 March 2006.
- Children already covered by state awards or agreements.
- Children covered by federal awards or agreements made prior to the introduction of the federal workplace relations legislation (before 26 March 2006).
The entitlements in these instruments have already been tested against a 'no disadvantage test or were approved by the Queensland Industrial Relations Commission (QIRC) before they came into operation.
What must an affected employer do?
An employer must ensure a child is not disadvantaged by receiving lesser entitlements and protections than those which applied under a State award or order or in the specified provisions of the Industrial Relations Act 1999 that cover a worker performing similar work.
An employer must also ensure:
- a copy of the State award or order (referred to above) that is in force is conspicuously displayed at the workplace, and
- the same time and wages records are kept that an employer would be required to keep under the Industrial Relations Act 1999.
What powers will ensure compliance?
Industrial inspectors may issue a compliance notice which directs an employer to remedy any disadvantage to a child worker in relation to employment conditions. This may include a direction to pay a child an amount that would have been payable under an applicable State award or order or under the specified provisions of the Industrial Relations Act 1999. Such a compliance notice may relate to any period of employment after 27 March 2006 where a child has been disadvantaged.
An employer issued with a compliance notice may appeal against the notice to the Queensland Industrial Relations Commission. The QIRC may confirm the notice, allow the appeal and vary the notice or allow the appeal and revoke the notice.
An inspector may apply to the QIRC for a decision about whether an affected employer has disadvantaged a child in relation to their employment conditions. If the QIRC decides that a child has been disadvantaged it has powers to remedy the situation.
Entitlements and protections under the no disadvantage test in the Industrial Relations Act 1999 can include those under a designated award in circumstances where an employer or organisation of employees proposes to make a certified agreement and there is no relevant award. The designated award in this situation may include a federal award.
Industrial Magistrates have been given powers to deal with proceedings against an employer for a compliance notice offence. Their powers include the ability to impose fines if the employer is found guilty of an offence. Industrial Magistrates can also order the employer to remedy the disadvantage to a child whether or not an offence was committed.
As from 18 April 2007 a child dismissed by a constitutional corporation may, under the Child Employment Act 2006, apply to the QIRC or an Industrial Magistrate for an order similar to the dismissal provisions of the Industrial Relations Act 1999. The QIRC or Industrial Magistrate can order that a child be reinstated to their former position or if this is impracticable, order re-employment or an amount of compensation.
This includes unfair dismissal, dismissal for an invalid reason, requirements for dismissal (notice), stand down, severance or other separation benefits. This provision applies to all children no matter what federal or state industrial instrument applies to their employment.
If you are a worker, do the minimum employment conditions affect you?
If you answer "Yes" to all the questions below, the minimum employment conditions affect you.
| Are you under 18 years of age and employed by a constitutional corporation (including a financial or trading corporation – generally Pty Ltds or Limiteds)? | Yes/No |
Is your employment covered by -
|
Yes/No |
Is there a State award or order that covers employees who perform similar work; or Do the general employment conditions under Chapter 2 of the State Industrial Relations Act 1999 cover employees who perform similar work? |
Yes/No |
Are you being disadvantaged?
As an affected worker, you are being disadvantaged if your employment conditions are less than the minimum conditions provided for under -
- the State award or order; or
- Chapter 2 of the State Industrial Relations Act 1999.
If you are an employer, do the minimum employment conditions affect you?
If you answer “Yes” to all the questions below, the minimum employment conditions affect you.
| Is the employer entity a constitutional corporation (including a financial or trading corporation – generally Pty Ltds or Limiteds)? | Yes/No |
Does the corporation employ an employee less than 18 years of age? |
Yes/No |
Is the employment of that employee covered by -
|
Yes/No |
Is there a State award or order that covers employees who perform similar work; or Do the general employment conditions under Chapter 2 of the State Industrial Relations Act 1999 cover employees who perform similar work? |
Yes/No |
Are you disadvantaging an affected worker?
As an affected employer, you are disadvantaging a worker if their employment conditions are less than the minimum conditions provided for under -
- the State award or order; or
- Chapter 2 of the State Industrial Relations Act 1999.
Last updated 21 July 2009
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