Are the kids alright? Children in the entertainment industry

Each State and Territory of Australia has various laws that impact on the employment of children.

• All States and Territories have education laws that require children to attend school between the ages of six or seven and fifteen years old during school hours.
• Occupational, health and safety laws protect both adults and children from working in dangerous or unhealthy conditions and industrial relations laws regulate hours and awards for all workers.

However, only New South Wales and Victoria require an employer or parent to obtain a licence before a child can be employed in the entertainment industry. New South Wales goesven further by also requiring that employer to comply with a code of practice.

Type of employment covered by the NSW law

In New South Wales, the Children (Care and Protection) Act 1987 regulates the employment of children less than 15 years of age in:

• entertainment or exhibition;
• recorded performances which are for use in subsequent entertainment or exhibition;
• still photographic sessions; and
• door-to-door sales.

It covers only employment for which either money or other material benefit is received. Therefore neither the child nor the employer has any rights or obligations under the law if the child is unpaid or receives only token benefit. For example, the children in a ballet class who are employed as extras on a film or commercial shoot and who do the job for the experience rather than for payment will not be covered by the law in NSW.

What the employer must do before employing a child in the entertainment industry in NSW

Employers must obtain an authority from the Children’s Employment Unit (CEU)^[1]. The fee for a 12 month Authority: (a) for entertainment and exhibition is $1100; and (b) for still photographic sessions is $440. The fee for a one month Authority: (a) for entertainment and exhibition is $550; and (b) for still photography is $242.

The CEU issues authorities on condition that the employer and all those working for, or contracted to, the employer, comply with the Code of Practice. Copies of the Code can be obtained from the CEU.

Code of Practice

The Code includes the following provisions:

• It sets out the number of hours and days that a child can work and indicates how this is to be calculated (for example, the travelling time to and from the work is to be included as are any breaks);
• There is a minimum break time required between successive shifts;
• Food and drink requirements;
• Minimum standards for dressing room and toilet facilities;
• It prohibits punishment of a child;
• Nudity is prohibited (either of the child or any other person);
• Any role or scene in which the child is cast must be appropriate to the child’s age, psychological development and emotional maturity;
• Adequate supervision of the child must be provided taking into account the age and sex of the child;
• Special provisions apply to babies under 12 weeks.

Although the Code is comprehensive, the CEU has discretion to vary some of the conditions. This will depend on a number of factors including the employer’s record on dealing with children, the particular requirements of the work and the child. For instance, while there is a prohibition on nudity, an employer may be permitted to shoot a commercial for nappies or another baby product showing a naked baby.

What the employer is required to do before employing a child in Victoria

Victorian law^[2] regulates the employment of children under 15 years of age working in any commercial enterprise – including the entertainment industry – whether or not the child is paid. You must obtain a permit to employ a child either during or out of school hours. However, whereas in NSW the employer is responsible for obtaining the permit, Victorian law places the onus on the parents or guardian to get the permit. The permit issued in Victoria is free of charge. Exemptions exist for child employment in connection with fundraising or other charitable purposes or for participation in sporting activities.

Practical issues to consider in the other States and Territories before employing a child in the entertainment industry

None of the other states or territories has a licensing requirement for the employment of a child in the entertainment industry and child employment is relatively unregulated. There is a general prohibition on the employment (paid or unpaid) of a school age child during school hours. However, each State or Territory gives a responsible authority discretion to grant an exemption, provided the employment will not interfere with the child’s education, health or emotional well-being.

South Australia and the ACT require notice to be given to the responsible authority if the child, whether or not of school age, is to be employed for longer than 10 hours in one week.

Otherwise, where you are dealing with or representing children and you want to follow best practice, you may find it worthwhile building some of the terms and conditions from the NSW Code into your child employment contracts. Contact the CEU for a copy of the Code and more advice about best practice.

Children’s Employment Unit www.community.nsw.gov.au tel: 02 9245 1709

Child Employment Officer, Industrial Relations Victoria tel: 03 9651 0940 or go to http://www.business.vic.gov.au/BUSVIC/LANDING/SEC04.html

Ann Johnson was a volunteer in 2003. Written with assistance from Simon Etherington, Arts Law Legal Officer in 2003.
 

Footnotes

^[1] The Department of Community Services NSW administers the CEU.

^[2] Community Services Act 1970 . A Bill has been introduced into Parliament which, if passed, would introduce a code of practice for the entertainment industry similar to the one in NSW.