The holiday season is upon us, and for the young person who has completed their exams, the extra time the
holidays bring them is an opportunity for possible work exposure, holiday jobs and an opportunity to earn
income. Employers in the retail, hospitality, and food and beverage industries may welcome the opportunity to
employ enthusiastic youth, providing extra cover during a busy holiday period.
The recent news of McDonald's committing to tighter child labour compliance in the US is a cautionary note to
balance the importance of providing youth with a start in the working world with the additional legislative
considerations that come with employing children. Youthful naivety, a lack of experience in the job market, and
a willingness to make a good impression on prospective employers, or to make as much money as possible where
tipping and discretionary payments are customary, on the behalf of the youth offering their labour, combined
with efforts to service extra demand at high volume (and therefore high pressure environments) the behalf of the
employer, can, however, be a potential risk for employers, when wanting to guard against contravention of labour
safety regulations. Unique legal obligations are applicable when allowing the youth to engage in employment,
even if this is part time or casual holiday employment. A snapshot of some key legal considerations employers
should keep in mind when employing youngsters over the holiday season is discussed below.
The Regulations on Hazardous Work by Children in South Africa, published in terms of both the Occupational
Health and Safety Act and the Basic Conditions of Employment Act (the Regulations), are generally aimed at
protecting the health and safety of child workers who are lawfully entitled to work by prohibiting them from
engaging in certain kinds of work, and placing conditions on the work they may lawfully undertake. A child
worker is essentially defined in these regulations as being a child (i.e. a person under the age of 18)
who:
- is employed by or who works for an employer; or
- works under the direction or supervision of an employer or any other person.
The Regulations impose unique legal obligations on employers who employ child workers because of, among other
things, their ongoing physiological development and, as a result, increased vulnerability to chemical
substances, sleep disruption, and coercion and/or abuse. These unique obligations also apply due to a child
worker's possible lack of maturity in making safety judgments, and their potentially reduced ability to
adapt to work routines and perceive danger.
The Regulations prohibit, and in some instances make it an offence for any person to require or permit a child
worker to undertake work that carries unacceptable risk of harm. This includes but is not limited to exposing
child workers to physical, psychological or sexual abuse. Consider a flirtatious remark from a patron at a
holiday club or a frustrated outburst from a customer trying to get their Christmas shopping done: while
employees of any age ought not be required to endure such treatment, more onerous obligations fall upon the
employer when engaging child workers for any job where the risk of such exposure is likely. Other examples of
prohibited work include work in a bar, pub or other establishment whose primary business is to sell alcoholic
beverages to the general public, for consumption on the premises, or work in a casino or other gambling
establishment.
Retail managers would need to consider whether the energetic child worker is the most appropriate employee to
send into the storeroom for stock to replenish shopfront shelves, as the Regulations prohibit a child worker
from lifting objects weighing 15 kg, or 20 percent of the child's body weight (whichever is less), and from
lifting objects weighing more than 7.5 kg more than once per minute. The Regulations also require that child
workers be given 30-minute breaks after every 2 hours of lifting objects weighing more than 5 kg. Hard manual
labour exceeding 15 minutes per hour is also prohibited, although this prohibition must be read with the
Environmental Regulations for Workspaces, published in terms of the Occupational Health and Safety Act.
The Regulations further prohibit any person from requiring or permitting a child to undertake piecework (i.e.
work where the child's remuneration is based on the quantity of work done) or task work (i.e. work where the
child's remuneration is based on the completion of set tasks). This prohibition does not, however, bar an
employer from paying a child a commission or incentive payment on the completion of a task, provided the child
is paid the minimum wage prescribed for that work or a consistent basic wage based on time worked, which is more
than the commission or incentive payment.
In relation to working hours, the Regulations prohibit a child from working for more than 8 hours a day. Child
workers who are not enrolled at school are prohibited from working for more than 40 hours a week, while child
workers who are enrolled at school are prohibited from working for more than 40 hours a week during school
holidays. A child is also generally not permitted to work before 6 am or after 6 pm on any day, but may work
between 6 pm and 11 pm if they are working in a restaurant, cinema, theatre or shop where there is adequate
adult supervision.
The above should not dissuade employers from employing children, particularly during holiday and high-volume
seasons where the work experience may ultimately be extremely beneficial to both the child and the employer.
Instead, it should sensitise employers to the particular safety needs of child workers.
