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Roth, Paul --- "Child Labour in New Zealand: a job for the nanny state?" [2010] OtaLawRw 2; (2010) 12 Otago Law Review 245

Last Updated: 25 February 2012

^{Inaugural Professorial Lecture: 27 March 2008}

Child Labour in New Zealand: A job for the nanny state?

Paul Roth*

1. Introduction

Although some may initially be surprised,¹ children have full capacity to enter into a wide variety of contractual relationships. For example, there is nothing unusual in a six year old child walking into a shop alone and entering into a contractual bargain by purchasing a candy bar. Moreover, in the twenty-first century, just as in the nineteenth, a six year old child in New Zealand can quite legally enter into a contractual relationship involving the performance of work. The Employment Relations Act

2000 defines an “employee” as “any person of any age employed by an employer to do any work for hire or reward under a contract of service.”²

A young child can also work as an independent contractor, as did the six year old child who delivered pamphlets in Mosgiel, just outside Dunedin, in 2008. She was run over by a car while making her deliveries, and was taken to the hospital with internal injuries and a broken arm. Her 12 year old brother, who was working with her, was more fortunate, and escaped injury.³

Many children in New Zealand currently perform work, and although not very much is known about it except anecdotally, such work generally seems to be a positive experience. Children work on farms, in dairies, fast food restaurants, and on the streets delivering advertising and newspapers. Development of a work ethic and a sense of responsibility and autonomy in children are thought to be a good thing. Moreover, in a society with a large youth market oriented towards the continual acquisition of new products, children themselves are eager to earn the money to purchase what they want or think they need, and this takes some financial pressure off parents. In some cases, families may even

* Professor, Faculty of Law, University of Otago. This article is a version of my Inaugural Professorial Lecture, which was delivered at the University of Otago on 27 March 2008. I thank the Dean of the Faculty of Law, Professor Mark Henaghan for his enthusiastic introduction, as well as his always unflagging support and good humour. I also thank the late Professor Richard Sutton for his closing remarks, which combined his usual wisdom and generosity: he is missed. I would also like to acknowledge my many colleagues over the years for their inspiration, knowledge, and good company.

¹ Including law lecturers. The following proposition was instinctively doubted by a colleague in the Faculty of Law in the course of a tearoom conversation. It should be added that he was not a commercial lawyer.

^{2 Emphasis added.}

^{3 Sarah Harvey “Girl run over on footpath” Otago Daily Times, (9 July 2008)}

^{at 4.}

depend on the extra contribution of their children’s work to make ends meet.

Child labour, however, is very loosely regulated in New Zealand, and it is out of step with international standards. The issue is whether the government should do anything about this situation. The reality is that it would be quite difficult, both practically and politically, to change the current law. Perhaps because of this, there has been a systemic failure to collect adequate information that might tell us whether New Zealand needs to strengthen its child labour laws, or whether all is well and we can leave well enough alone. In this paper, I argue that New Zealand should not be complacent about child labour, and as a first step should at least begin collecting information about it. New Zealand should also move more deliberately to bring its laws in line with international standards.

2. Background to the Regulation of Child Labour

The regulation of child labour in our legal tradition began in Britain in 1788 with the first law setting out a minimum age of eight years for the employment of “climbing boys”, or chimney sweeps. Before that, children as young as five were sent up narrow, dirty, and usually very hot chimneys. The chimneys were often on fire, and the children were sent up in order to extinguish the flames. Their masters would commonly leave calling cards at peoples’ homes that quoted the phrase “Little boys for small flues.”⁴ The flues to ovens and coppers were often less than nine inches square.

The history of the regulation of child labour on both the domestic and the international levels has proceeded on the basis of fixing a minimum age before children should be allowed to do certain kinds of work, such as cleaning chimneys. For example, the minimum age of eight years, set in 1788, was raised to 10 years in 1834, and 16 years in 1840. A similar pattern of first fixing, and then increasing the minimum age for work occurred in other sectors.⁵ In English textile mills, the minimum age was set at nine years in 1833, and 10 years in 1874. For underground mining, the minimum age was 10 years in 1842 (with girls and women

⁴ “Climbing Boys” (1813) 32 Edinburgh Review 309, reprinted in John Saville (ed) Working Conditions in the Victorian Age: Debates on the issue from 19th century critical journals (Westmead, England, 1973).

⁵ One of the earliest problems encountered in regulating child labour was how to determine how old a child actually was. Before there was a system of civil registration of births or compulsory education, it was often difficult to tell how old a child was. Accordingly, the earliest British Factory Acts from 1833 onwards required that every child had to be examined by a doctor so that the child’s age could be roughly determined. As it turned out, these doctors also came to be used to reject those who were physically unfit for factory work, even if they were above the statutory age for the work. By 1867, this led to a system of general medical inspection of all young persons who worked in factories.

^{prohibited); 12 years in 1872, and 13 years in 1900.}

A similar pattern applied to New Zealand factories legislation. In 1875, the minimum age for factory work was 10, and hours were regulated. Children between 10 and 14 years old could only work half days, or for the whole day only on alternate days. In 1881, the minimum age was raised to 12, and in 1891, working hours were limited to 48 hours per week. In 1894, the minimum age for factory work was 14, and in due course it was raised to 15, which is the present minimum age.

The general thrust of child labour regulation has therefore always been concerned with setting minimum ages for particular types of work, and regulating the hours of work. In the second half of the nineteenth century, with the introduction of universal compulsory education, the law in this area developed in tandem with state education requirements, and the linkage continues to be characteristic of this area of law.

Regulation of child labour began on the national level in a number of other countries as well in the course of the nineteenth and early twentieth centuries, and in due course, this formed the basis of international standards. Four of the first 10 International Labour Organisation (ILO) conventions, dating from 1919-1921, dealt with child labour and the minimum age for work in certain sectors such as agriculture, factories, and shipping.

Child labour, however, has always been notoriously difficult to regulate. Traditionally, the worst forms of exploitation have been largely invisible because they take place in the home or sweatshops; they have tended to be most prevalent among immigrant groups and the very poorest in society; and they often occur with parental acquiescence if not initiation. There seems to be an assumption today that the conditions surrounding child labour that applied in the past no longer exist. Such evidence as there is for New Zealand indicates that although child labour may not be as exploitative as it may have been in the past, it is still largely invisible, and it continues to take place with parental knowledge and approval.

The regulation of child labour is now only just over 200 years old, with most advances made in the second half of the nineteenth and the early twentieth centuries. There appears to have been much more regulation of child labour in New Zealand in the past than there is today,⁶ and it is noteworthy that the State was concerned about child labour at a time when it was not yet fashionable to make disparaging references about the “nanny state”. In the early 1990s, New Zealand saw the deregulation of the labour market; the abolition of the award system; a sharp decline in union power and presence; and the repeal of factories legislation, and with it the disappearance of a factories inspectorate. These changes meant that the few systemic ways of detecting and dealing with child

⁶ See, for example, Jeanine Graham “Child Employment in New Zealand” (1986) 21(1) New Zealand Journal of History 62; Rosemary Goodyear “Overworked Children? Child Labour in New Zealand, 1919-1939” (2006)

^{40(1) New Zealand Journal of History 75.}

labour issues were swept away, and one wonders whether the baby was thrown out with the bathwater.

3. International Standards on Child Labour

In its 2005 Party Manifesto, the Labour Party committed itself to pursue ratification of ILO Convention 138 of 1973 on the Minimum Age for Admission to Employment. Although the government subsequently gave the matter consideration, and a few tentative steps were made towards bringing New Zealand law in line with it, New Zealand has still not ratified it.

The ILO is an agency of the United Nations based in Geneva. It was established in 1919, with New Zealand as one of its original members. There are currently 181 member countries and 188 ILO conventions. These conventions are international treaties that are legally binding on those countries that ratify them.

Realising that 188 was a very large number of treaties, the ILO in 1995 singled out those that it considered to be absolutely fundamental and launched a campaign to concentrate on universal ratification of four core goals promoted by eight conventions. This campaign culminated in the

1998 ILO Declaration on Fundamental Principles and Rights at Work, which provides that member states have an obligation, arising from the very fact of membership of the ILO, to promote and realize the four core goals, one of which is “the effective abolition of child labour.”

Convention 138 of 1973 is the basic convention that deals with child labour. It consolidates 10 earlier ILO conventions on the subject.⁷ When the number of ratifications of ILO 138 were slowing down, the ILO adopted Convention 182 on the Elimination of the Worst Forms of Child Labour in 1999. This was to target the very worst abuses. It deals with child slavery and trafficking; debt bondage; forced labour; recruitment in armed conflict; use of children in sex work and drug trafficking; and (generally) any work that is likely to harm the health, safety or morals of children. New Zealand was one of 165 ILO member states that ratified Convention 182.⁸

Convention 138 applies more generally than Convention 182. It has been ratified so far by 150 countries, but not yet New Zealand. It deals with work carried out under employment relationships as well as other types of arrangements, whether contractual or non-contractual, and covers both paid and unpaid work. It is not intended to cover domestic work by children such as doing family chores, baby-sitting, or cutting grass.

Convention 138 overlaps with two other international human rights treaties to which New Zealand is already a party. One is the International Covenant on Economic, Social and Cultural Rights, adopted by the

⁷ Convention 138 came into force on 19 June 1976.

^{8 New Zealand ratified Convention 182 on 14 June 2001.}

United Nations General Assembly in 1966, and entered into force for New Zealand in 1979. This Covenant, like ILO Convention 138, requires New Zealand to set a minimum age for the paid employment of children.⁹ 157 countries have ratified it.

The other international treaty is the Convention on the Rights of the Child, adopted by the UN in 1989, and entered into force for New Zealand in 1993. This treaty also requires that states parties should set a minimum age or ages for admission to employment, as well regulate the hours and conditions of work for young people.¹⁰ Every country in the world has ratified this convention except the United States and Somalia (192 out of 194 countries). When ratifying this convention, however, New Zealand entered a reservation to it, to the effect that New Zealand considers that existing law already provides adequate protection for the rights of children, and that it reserves the right not to legislate further in this area.

The Committee on the Rights of the Child, which is the supervisory body for the Convention on the Rights of the Child, has stated that although countries can make reservations to the Convention, they should be working towards withdrawing them. In its most recent review of New Zealand’s periodic report on compliance with the Convention, the Committee on the Rights of the Child stated that it was “disappointed by the slow pace” of New Zealand’s progress in removing its reservation.¹¹

It also commented that it was “very concerned” that New Zealand still had no minimum age of employment,¹² and that the protection of workers under 18 years old did not conform to international standards.¹³ It wants New Zealand to ratify ILO Convention 138.¹⁴

New Zealand is among a minority of states that have not ratified this important international convention. To put this in some perspective, however, most of the countries that have gone ahead and ratified Convention 138 are not fully compliant with it. Convention 138 is not an easy convention to fully conform to because child labour is an activity that is traditionally difficult to regulate. Convention 138 is also quite prescriptive and does not easily allow of exceptions, even if well

9. International Covenant on Economic, Social and Cultural Rights (entered into force 1979), art 10(3).

^{10 Convention on Rights of Child (entered into force 1993), art 32.}

^{11 Committee on the Rights of the Child, Consideration of Reports submitted}

^{by States Parties under Article 4 of the Convention, Concluding Observations:}

^{New Zealand, CRC/C/15/Add.216 (27 October 2003) at [6].}

^{12 Ibid, at [20].}

^{13 Ibid, at [47]: “The Committee is concerned that the protection of persons}

^{under 18 in employment does not fully conform to the principles and}

^{provisions of the Convention, and it reiterates its concern ... about the}

^{lack of a minimum age of admission to employment.”}

^{14 Ibid, at [48]: “The Committee recommends that the State Party expedite}

^{the ongoing process of reviewing and strengthening legislation protecting}

^{all persons under the age of 18 who are employed, and encourages the}

^{State Party to ratify ILO Convention No 138.”}

^founded.

Nevertheless, many countries to which New Zealand compares itself, like Ireland, Britain, and most other OECD countries, have ratified Convention 138. Major exceptions to this pattern are Australia, Canada, and the United States.

In practice, New Zealand does not ratify international human rights treaties such as ILO Convention 138 unless it is already compliant. Indeed, there is no point in signing up to a treaty that one is in breach of from the point when a state party becomes bound by it. States Parties are required to submit periodic reports on their compliance with treaties such as Convention 138,¹⁵ and these reports are reviewed by the ILO Committee of Experts on the Application of Conventions and Recommendations, which is the supervisory body for ILO treaties. Countries are publicly criticised if their compliance falls short of the required standard. The current position regarding New Zealand and ILO Convention 138 is that the government is mulling over what changes it must make in order to achieve compliance before it ratifies the treaty.

4. Regulation of Child Labour Currently in New Zealand

There are very few rules governing the employment of young people in New Zealand. As noted earlier, there is no minimum age for employment, given that “any person of any age” can be an employee. Similarly, there is no minimum age for a self-employed person or anyone else who performs work. Under our system of law, as long as one understands the nature of the particular relationship, one can enter into a valid contract. Child labour can also take place in the context of family-based work, where whole families may undertake a particular task collectively. This sort of work tends to be invisible. There was a New Zealand case from the late

1970s where a family counted and packed washing pegs at home.¹⁶ That situation only came to light because the family had not been paid, and the Inspector of Awards (unsuccessfully) took a case on their behalf.

The Minors Contracts Act 1969 provides that the employment contracts of minors “shall have effect as if the minor were of full age.”¹⁷ However, one can apply to cancel the contract or seek other relief if the Employment Relations Authority can be convinced that the pay is “so inadequate as to be unconscionable”or if a provision of the contract is “harsh and oppressive.”¹⁸ Needless to say, this legislation appears never to have

¹⁵ In November 2001 and March 2002, the ILO’s Governing Body approved a new reporting system that entered into force for five years. Under this system, reports on ratified conventions are due either every two years for fundamental conventions (like Convention 138), or every five years for all other conventions: ILO Documents GB.282/LILS/5 of November

^{2001 and GB.283/LILS/6 of March 2002.}

^{16 Inspector of Awards v Gregory Priest (t/a Renee Foil Printers) (1979) ACJ}

^359.

^{17 Minors Contracts Act 1969, s 5 (1)(c).}

^{18 For the jurisdiction of the Employment Relations Authority under the}

been used, as it would be unrealistic to expect children (or their parents) to know about the rights contained in it. Even if that were the case, it would be unlikely that anyone who is paid an unconscionable amount of money would be in a position to pay a $70 filing fee and hire a lawyer to argue the case before the Authority, with the risk that a reasonable contribution to the employer ’s legal costs would have to be made if the case were lost.

Child labour is principally regulated by a combination of education and health and safety legislation.

The Education Act 1989 requires children to attend school until age 16.¹⁹

^{It prohibits the employment of children under 16 during school hours}

^{or when it would interfere with their attendance at school.}

The Health and Safety in Employment Regulations 1995 (SR 1995/167), made under the Health and Safety in Employment Act 1992, provide that:

• Persons younger than 15 may not work in hazardous places or undertake injurious tasks. The regulations single out the manufacture of goods,²⁰ construction work,²¹ logging,²² lifting heavy weights,²³ and working with machinery.²⁴

• Persons younger than 15 also may not operate or ride on a tractor or other vehicle,²⁵ but children over 12 are exempted where the tractor is being used for agricultural work, and the young person has been fully trained.²⁶

• Persons younger than 16 may not not perform work between 10 pm and 6 am.²⁷

Until 1 April 2009, these rules applied only to young people who performed work as employees, and not as independent contractors. In relation to the performance of work on any other basis, such as a volunteer or family member, there are only the general obligations on people who control places of work relating to workplace hazards,²⁸

Minors Contracts Act 1969, see s 162(g) of the Employment Relations Act

^2000.

^{19 Education Act 1989, s 30.}

^{20 Health and Safety in Employment Regulations 1995, (SR 1995/167) regs}

^{54(1)(a) and 58B(1)(a).}

^{21 Ibid, regs 54(1)(b) and 58B(1)(b).}

^{22 Ibid, regs 54(1)(c) and 58B(1)(c).}

^{23 Ibid, regs 55 and 58C.}

^{24 Ibid, regs 56 and 58D.}

^{25 Ibid, regs 57 and 58E.}

^{26 Ibid, reg 61. It should be noted that it has always been particularly difficult}

^{to regulate children’s work on farms and orchards in New Zealand.}

^{It was not until 1936 that the Agriculture Workers’ Act prohibited the}

^{employment of children under 15, but it did not apply to the farmer ’s}

^{own children.}

^{27 Ibid, regs 58 and 58F.}

^{28 Health and Safety in Employment Act 1992, s 16.}

and a specific regulation prohibiting persons under the age of 14 to be in hazardous places of work unless under the direct supervision of an adult.²⁹

There is also legislation that provides minimum ages for entry into some types of work, such as selling alcohol³⁰ and sex work,³¹ where the minimum age is 18.

The hours of young peoples’ work tend to be much more closely regulated in many overseas countries. New Zealand merely has the general guideline that work hours should not be such that they endanger health and safety, and in the case of young people still at school, the hours must not be such as to interfere with school attendance. This general standard, however, does not take into account whether the young person will be tired at school, have time for homework, or be able to take part in school cultural or sporting programmes, which are other important aspects of a child’s development. The looseness of regulation also does not prevent young persons from working long hours over the weekend. For example, a newspaper recently reported claims that several school- aged staff at the Invercargill McDonalds worked 22 and 23 hour shifts because of under-staffing, and there were allegations that staff were threatened with dismissal if they refused to work these long hours.³²

5. What is Currently Known about Child Labour in New Zealand?

Aside from the occasional news report and anecdote, there is actually very little information currently available about child labour in New Zealand. There are only several recent studies of child labour in New Zealand: two by Caritas, a Catholic relief agency,³³ that has been criticized for emphasising the negative aspects of young children being allowed to work,³⁴ and an academic study that takes an unabashedly “children’s rights” approach, which favours giving children the opportunity to make their own employment choices.³⁵ The latter survey indicates that

²⁹ Health and Safety in Employment Regulations 1995 (SR1995/167), reg

^59.

^{30 Sale of Liquor Act 1989, s 161.}

^{31 Prostitution Reform Act 2003, ss 20-23.}

^{32 Evan Harding “McDonald’s to look into claims of 23-hour shifts” The}

^{Southland Times, (13 March 2008).}

^{33 Caritas (Catholic Agency for Justice, Peace and Development) published}

^{its Children’s Work Survey in 2003, and in 2007 it published a further}

^{report, Delivering the Goods, on children workers who deliver newspapers}

^{and advertising circulars. Both are available at <www.caritas.org.}

^{nz/?sid=1044>.}

^{34 Ruth Gasson “A Minimum Age For Employment: The Right of Young}

^{People to be Heard” (2005) 40(3) Australian Journal of Social Issues 385,}

^{at 393.}

^{35 Ibid. This study was based on a Department of Labour funded study that}

^{surveyed 1,500 Auckland school students aged between 11 and 15 years}

^{old: N R Gasson, C Linsell, J E Gasson, S Mundy-McPherson “Young}

^{People and Work” (2003) <www.dce.ac.nz/research/content_ypaw.htm>}

many children worked for family members, and that they are more likely to attend medium to high decile schools. Most spent their income on themselves. A very small proportion (less than 10 per cent) contributed their income to their families.

Because such surveys have been made on the basis of children who are in school, this is already a self-selected group. History has shown that the sort of children who perform labour of the economic exploitative kind are difficult to identify and assist. With these children, it is not so much free choice but family necessity or condonation that impel them to undertake work. The 2006 Ministry of Education truancy survey reported that 30,000 children are truant in any given week, and that there are about

6,400 children who should be enrolled who are not.³⁶ It is not known to what extent work responsibilities are behind these figures, but work (such as taking care of siblings,³⁷ employment, or doing farm work³⁸) has been cited as one factor in some of these absences.

Children who are looking after family members who may be physically or mentally ill or incapacitated constitute an invisible group of child workers, and very little is known about them.³⁹ In Britain, one study indicated that there are tens of thousands of such child workers, the average age of whom is 12 years. 86 per cent of these carers were of compulsory school age, and over half were between the ages of 11 and 15. Over 20 per cent of these children were missing some school, and many more were hampered in their schoolwork by their duties at home, which included looking after ill siblings or an incapacitated family member.⁴⁰

Traditionally, much child labour takes place in the informal sector. Young employees tend not to know very much about their legal rights.

(no longer available on-line).

^{36 Lisa Ng Attendance, Absence and Truancy in New Zealand Schools in 2006,}

^{Ministry of Education (Wellington, 2007).}

^{37 “Plan gets all truants back in class” East & Bays Courier (20 May 2008),}

^{<www.stuff.co.nz/auckland/local-news/east-bays-courier/451274/}

^{Plan-gets-all-truants-back-in-class> Ministry of Justice, “Whakatane}

^{Truancy Initiative”, E-Flash 6, (18 May 2009), <www.justice.govt.nz/}

^{policy-and-consultation/youth/e-flashes/e-flash-6> .}

^{38 See, The Education Review Office Review of Truancy Management in Six}

^{Territorial Authorities (November 2004) at 23.}

^{39 See, for example, Laurie Hilsgen, “Child carers more common than you}

^{think, says Pania” Carersnetnz (16 February 2005) <www.carers.net.nz/}

^{modules.php?op=modload&name=News&file=article&sid=290&mode}

^{=&catid=316&thread&order=0&thold=0> (no longer available online).}

^{40 Ibid, “Who are young carers?” (information cited from the Princess Royal}

^{Trust). See also “hidden burden of young carers” BBC News (1 September}

^{2004) <http://news.bbc.co.uk/2/hi/uk_news/scotland/3614936.stm>}

^{Jane Elliott “Caring for the child carers” BBC News (9 October 2004)}

^{<http://news.bbc.co.uk/2/hi/health/3720790.stm> “Young carers}

^{‘fear seeking help’” BBC News (7 November 2006) <http://news.bbc.}

^{co.uk/2/hi/uk_news/education/6121716.stm>; Angus Stickler “Child}

^{carers’ left to cope alone’” BBC News (9 May 2007) http://news.bbc.}

^{co.uk/2/hi/health/6636585.stm>.}

Very few young people access the Department of Labour ’s information services, and they tend not to make complaints.

What should be the two best sources of information – the census and income tax information – are not helpful in indicating the extent and other details concerning child labour.

The New Zealand census does not collect information about the employment of children under 15. The census form used in the most recent census in 2006 asked children to skip all of the work and income related questions.⁴¹ This contrasts with the 1891 and 1901 census, for example, when the number of wage earners under 15, their occupations, and other information were recorded.

There is little information to be obtained from the Inland Revenue Department as well.⁴² In theory, it should be possible to get an idea of the extent of child labour through tax statistics, but PAYE does not have to be deducted from children’s wages because the Inland Revenue Department has a children’s (under 16 year old) tax threshold of $2,340 ($45 per week), which virtually all children fail to exceed given the small amounts of money they make.⁴³ For the same reason, there are no records of Accident Compensation Corporation (ACC) deductions or levies. This means that child workers are invisible to the tax system and the levy side of the accident compensation system.

Therefore, there is no accurate or even indicative “front end” information about how many working children there are in New Zealand.

Another approach is to look at some “back end” figures: information that is recorded in official records from work-related accidents. This does not tell us how many children are working, but it does indicate that some of the children who do are sometimes performing hazardous work. Finding the figures, however, is a frustrating exercise, as it is not possible to say with much certainty how many children are actually

⁴¹ Question 20 of the 2006 census asked all children under 15 to skip all subsequent questions, which included those on the sources (question 30) and amount (question 31) of income, and type of work performed and other details such as hours of work and tasks (questions 32 to 40): see “2006 Census Questionnaires”<www.stats.govt.nz/Census/about-2006- census/2006-census-questionnaires.aspx> .

⁴² One exception relates to 16 to 19 year olds, who were the subject of a study using data from Statistics New Zealand’s Linked Employer-Employee Database (LEED), which is based on tax data supplied by Inland Revenue to Statistics NZ under the Tax Administration Act 1994: Dean R Hyslop, David C Maré, Steven Stillman, and Jason Timmins, An Analysis of Teenage Employment by Firms: 1999/00–2006/07 (LEED Research Report, Statistics New Zealand September 2008). As will be seen from what follows, such statistics are scarce for younger people. Although some may appear in LEED, they account for about 1.5 percent of monthly jobs and 0.2 percent of earnings (above, p 5, note 1).

⁴³ In the 2006 survey on which the Caritas report Delivering the Goods was based (see above, n 33 at 21), children who delivered pamphlets and advertising were making between $1.67 and $6.25 per hour.

^{injured in workplace accidents because no agency keeps accurate track}

^{of the figures, and it is widely accepted that there is under-reporting.}

There was an under 15 child work-related fatal injury study done at the University of Otago in 2004,⁴⁴ which covered the years 1985-1998. That study used information from the Ministry of Health national mortality database. Over the period being studied, there were 12 fatal work accidents for children (an average of nearly one per year): nine worked as farm labourers (the most common scenario was being fatally injured while riding a motorbike to shift stock); one child was delivering newspapers; and two worked as street milk vendors. Two thirds of these workers were 10 to 14 years old, and one third were under 10 years of age.

There are also several other categories of information that can be used to indicate how many children are getting hurt while working.

Firstly, there are the statistics kept by the Occupational Safety and Health Service of the Department of Labour (OSH), but these only cover reported workplace accidents. Employers are required to notify OSH of all cases of serious harm in the workplace, but this is not always done. There is also a systematic bias against notification of young peoples’ injuries because of the type of work they tend to do. In addition, young people are less likely to report workplace accidents on their own or seek assistance. This is partly due to young people being less aware of their rights, but also because they may have been told not to do so. There are some anecdotal reports concerning young people working in fast food outlets being told not to report burns from deep fat fryers. A 2008 newspaper account notes that the employer of a 16 year old McDonald’s worker whose stomach was sliced open by a blade left in a play tunnel that she was cleaning informed neither the Police nor the Department of Labour of the accident because “the injury was not thought to be serious.”⁴⁵ The OSH data is also not very useful because of its poor quality. There are 5,000 to 6,000 notifications of serious work-related accidents every year, and fewer than 4 per cent of these are recorded as being for workers under 18 years of age. However, the data entry error rate is greater than 4 per cent, which swamps the information on young workers.⁴⁶ In many cases, the worker ’s age is recorded as zero, one, or

⁴⁴ Rebbecca Lilley, Anne-Marie Feyer, John Langley, and John Wren “The New Zealand child work-related fatal injury study: 1985–1998”, Journal of the New Zealand Medical Association (21 May 2004) 117, No 1194,

^{<www.nzma.org.nz/journal/117-1194/891/>.}

^{45 The worker was taken to the hospital by ambulance and treated in}

^{the emergency department. The 7 cm gash required eight stitches. See}

^{“McShock: Blade cuts girl in kiddies’ play tunnel” Taranaki Daily News}

^{(20 February 2008) <www.stuff.co.nz/national/278024>.}

^{46 Correspondence from Rex Moir, Senior Sector Advisor, Workplace Services}

^{Support, Department of Labor, 24 September 2007 (obtained under an}

^{Official Information Act 1982 request on workplace accidents involving}

^children).

two years old, which is obviously incorrect. Moreover, the employment status of injured people recorded by OSH is often incorrectly recorded. For example, where the location of a serious accident is a school, the injured person’s employment status is often recorded as “employee,” even though the context would suggest that the injured person was more likely to be a student.⁴⁷

Therefore it is difficult to draw statistically significant conclusions from the OSH data. At best, the information is indicative. The sector with the greatest number of serious accidents is the agricultural sector, and the group with the highest incidence of serious harm is the 16-18 year old age group. The Department of Labour accepts that very little is known about injury rates for workers under the age of 15.

There have been at least four prosecutions under OSH regulations since 2004 involving young people. One prosecution in 2007 involved a

12 year old who was killed by a rubbish truck while helping his father during school holidays as a runner in his kerbside rubbish collection.⁴⁸

The other three prosecutions involved 14 year olds. Two of these related to operating machinery. There are also records of OSH investigations into fatal work-related accidents, and as indicated by the Otago study, there is about one fatal accident per year involving workers under 16. For example, in 2006, a 15 year old was crushed by a tractor; the year before that, a 12 year old was crushed by an ATV; and the year before that, a 15 year old riding on an ATV hit a fence and died.

Finally, there are ACC work-related injury figures. There are two main categories of statistics. First, there are those where the claimant receives weekly compensation for lost earnings or rehabilitative costs such as wheel chair ramps and the like. These figures deal with the more serious injuries. The statistics indicate that:

• for the nine and under age group, there are usually no more than about 10 children per year receiving these kinds of entitlements;⁴⁹

• for 10-14 year olds, there are usually between six and 16 children per year;⁵⁰ and

⁴⁷ Ibid.

^{48 Department of Labour v Street Smart Limited DC Thames CRI 2007-075-716,}

^{18 February 2008, Everitt J. The case was successfully appealed by the}

^{Department of Labour on the basis that the fine imposed was too low: HC}

^{Hamilton CRI-2008-419-000026, 8 August 2008 Duffy J; the respondent}

^{was granted leave to appeal to the Court of Appeal by the High Court}

^{on 7 October 2008 (Duffy J).}

^{49 The figures for each year within the 10 year period July 1998 to July}

^{2008 are: <=3, <=3, <=3, 10, 9, 5, 7, 11, 7, and 8. The statistics for these}

^{new and active work related entitlement claims are available at: <www.}

^{acc.co.nz/about-acc/statistics/acc-injury-statistics-2008/3-1-all-work-}

^{related-claims/IS0800043>.}

^{50 Ibid. The figures for each year within the 10 year period July 1998 to July}

^{2008 are: 8, 0, 7, 14, 12, 14, 11, 16, 11, 6.}

• for 15-19 year olds, the numbers rise dramatically to between 1,000 to 2,000 young people per year.⁵¹

Secondly, there is another set of statistics for work-related injuries that include not only entitlement payment claims and claims for fatal injuries, but also claims where only medical fees were paid, typically a visit to a general practitioner. These statistics indicate about 300 injuries for 14 year olds and under per year,⁵² rising dramatically to as many as 43,000 per year for workers in the 15-24 year old age group.

Because there are no data for the total number of children who work, it is impossible to make any comparisons between the injury rates of workers under 15 years old and other age groups, or between such workers in New Zealand and other countries. Overseas data suggests that the injury rates for younger workers tend to be higher than for other groups.

6. Areas of Non-Compliance with ILO 138 by New Zealand

Current New Zealand law does not comply with ILO Convention 138 in several respects. There are three main problem areas. Firstly, there is insufficient regulation of the minimum age specified for entry to various kinds of work according to their appropriateness for the different age groups. Secondly, the minimum legislative settings that do exist are off the international standard. Thirdly, there is a lack of regulation over key aspects of working conditions such as maximum hours of work per day or week, and there is no legislative provision to guarantee meal or rest breaks. All of this is left to the agreement of the parties, which is to say, the will of the employer more often than not.

ILO Convention 138 covers all work done by children, in whatever capacity, whether as an employee, independent contractor, or unpaid work, such as work within the family unit. New Zealand regulation has been aimed primarily at employment relationships, with coverage of independent contractor relationships introduced only in 2009. Unpaid work remains largely unregulated.

ILO Convention 138 requires that countries must generally set a basic minimum age of admission to full-time work. Although New Zealand

⁵¹ Ibid. The figures for each year within the 10 year period July 1998 to July

^{2008 are: 902, 155, 1,170, 1,474, 1,732, 1,807, 1,884, 1,908, 1,938, and 1,821.}

^{The sharp and steady rise after 2001 is noteworthy.}

^{52 See, Trends Tabe 3, Claims for Work-Related Injuries by Age, 2002-2007}

^{Hot off the Press, Injury Statististics-Work-Related Claims: 2008 (statistics}

^{New Zealand, 28 October 2009) at 30 available at: <www.media.nzherald.}

^{co.nz/webcontent/document/pdf/InjuryStatistics08HOTP.pdf>. While}

^{claims relating to workers 14 years and under are set out for 2002-2007 in}

^{Trends Table 3, they are not specified in the 2008 statistics at p 7 or in Table}

^{2 of the 2008 report. The reason for this omission is given in a footnote to}

^{Table 2 as follows: “FTE [full-time equivalent] figures are not available for}

^{the 14 years and under age group because the HLFS [Household Labour}

^{Force Survey] excludes those aged under 15 years.”}

has not explicitly set such a minimum age, there is a de facto minimum age of admission to full-time work by virtue of the school-leaving age, which is currently set at 16 years of age. This form of setting the minimum age satisfies the requirements of article 2 of Convention 138, which sets the minimum age for admission to employment at 15 years of age, and

^{14 years of age in developing countries.}

New Zealand does not, however, comply with the age settings fixed by Convention 138 for different types of work. The ILO standards apply to three different age groups: children under 13; children between the ages of 13 and 15; and 16 and 17 year olds. By way of contrast, New Zealand health and safety regulation deals with children in terms of only two age groups: children under 15 years old, and those who are 15 years old and over. Moreover, these age groups do not agree with the way the particular groups have been distinguished by the ILO.

Children Under 13 Years Old

In relation to the youngest group distinguished by the ILO, the standard is that children under 13 years of age (under 12 years in the case of developing countries) may not work at all unless the country specifically claims and justifies an exception under article 4 of Convention 138 for the particular type of work. In order to carve out such an exception, there must be “special and substantial problems” in the application of the convention.

New Zealand has not explicitly regulated the work of children under the age of 13, and there are no particular restrictions that apply to work performed by this age group. Instead, all such regulation as exists governs the employment of children under the age of 15. Children under the age of 13 are not separately considered for attention.⁵³

Young Workers Between the Ages of 13 and 15 Years Old

The second group of child workers distinguished by Convention 138 are those between the age of 13 and 15, who are restricted to “light work.”⁵⁴

^{Such work must not be hazardous or otherwise injurious to a child’s well-}

⁵³ One apparent anomaly is presented by s 10B of the Summary Offences Act 1981 (“Leaving child without reasonable supervision and care”), which provides: “Every person is liable to a fine not exceeding $2,000 who, being a parent or guardian or a person for the time being having the care of a child under the age of 14 years, leaves that child, without making reasonable provision for the supervision and care of the child, for a time that is unreasonable or under conditions that are unreasonable having regard to all the circumstances.” This provision generally applies to children who are left home alone. Unless it could be construed also to apply to children left to work outside the home without reasonable supervision, such as delivering pamphlets, the current loose regulation of child labour seems to sit oddly with the more protective approach of this provision of the Summary Offences Act.

⁵⁴ By implication, therefore, any work performed by child workers younger than 13 pursuant to the exception provided for under article 4 of Convention 138 must also be “light work.”

^{being. What constitutes “light work” must be specified in legislation. For}

^{example, the Employment of Children Regulations (Northern Ireland)}

^{1996 states that no child under 16 years of age may be employed in any}

^{occupation other than those specified in the Schedule to the Regulations.}

^{Those permitted occupations are listed as follows:}

1. Delivery of newspapers, milk, groceries, foodstuffs, flowers or

^{drapery goods.}

2. Office work except in premises licensed for the sale of intoxicating

^{liquor, betting or gaming.}

3. Hotel and catering work except in the kitchen or portions of premises licensed for the sale of intoxicating liquor.

4. Work as shop assistant excluding any premises licensed for the sale of intoxicating liquor, betting or gaming.

5. Domestic work.

6. Light agricultural work or horticultural work for the parents of the child concerned.

States must also prescribe conditions under which “light work” should be carried out. For example, “light work” will involve regular breaks, no night work, and a maximum limit on hours, which may vary according to whether or not school is in session.

New Zealand law, however, does not contain any specific definition of what constitutes “light work” except by implication, through the exclusion of certain types of work for under 15-year olds, and the prohibition of night work for under 16-year olds, in the Health and Safety in Employment Regulations 1995. There is no comprehensive specification of permitted work.

To comply with ILO standards, the minimum age for light work will need to be raised a year, from 14 to 15 years old. There is also a need for New Zealand to regulate the conditions of work for children under 16 in order to bring it within conventional definitions of light work. For example, meal and rest breaks need to be guaranteed for workers under

^{16 years old,55 and the maximum hours of work outside of school hours}

⁵⁵ Shortly before Labour was voted off the government benches in 2008, it enacted the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008. This amendment inserted new Part 6D to the Employment Relations Act 2000, which provides for a universal rest and meal breaks regime that came into force on 1 April 2009. This regime entitles all employees to a minimum of one paid 10 minute rest break if they have worked between two and four hours; an additional 30 minute unpaid meal break if they have worked more than four but less than six hours; and two paid ten minute and one unpaid 30 minute break if they have worked for over six hours. The legislation had the incidental effect of giving effect to international child labour standards that require regular meal and rest breaks for workers under 16. At the time this article went to press, however, the National government’s Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill 2009 was in the process

^{need to be specified in order to comply with the ILO standards.}

Young Workers Between the Ages of 16 and 17 Years Old

Under ILO standards, no potentially hazardous or injurious work is permitted for workers in the 16 to 17 year old age group unless the young person is fully protected and trained. Potentially hazardous or injurious work must also be comprehensively specified in work regulations. The ILO has taken the line that a general prohibition on hazardous work, on its own, for workers under 18 years of age, is insufficient as a safeguard, as it is unlikely to have any practical effect.⁵⁶ The ILO therefore requires that such work must be specifically designated, so it is clear what work is regarded as too hazardous for young people to perform.

The ILO expects regulation to take the form of a list of activities and occupations that are prohibited for workers under 18 years of age. For example, Syria’s law contains a list of 50 industries and occupations in which persons under 18 years of age may not be employed.⁵⁷ There are a number of international labour standards available, both from the ILO and the European Union,⁵⁸ that designate particular substances, processes, and activities as dangerous.

of being enacted. This Bill is intended to relax the provisions on rest and meal breaks, and “move the focus from prescription to flexibility, encouraging employers and employees to negotiate in good faith about workable arrangements regarding how rest breaks and meal breaks should be taken”: Explanatory Note. Under the Bill, employers will be left to determine reasonable breaks if agreement between the parties cannot be reached, with compensation being available in lieu of breaks if breaks cannot be provided, or if the parties agree. The Explanatory Note to the Bill notes that this amendment was being introduced to deal with problems in applying the legislation in some workplaces, particularly in relation to air traffic control. The Explanatory Note also comments candidly that “Officials have advised they have concerns about developing the proposed amendments to the rest breaks and meal breaks provisions of the principal Act at speed and without adequate consultation.”

⁵⁶ See, for example, the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), Individual Direct Request concerning Convention No 138, China, Macau Special Administrative Region 2005: “The Committee considers that a general prohibition of hazardous work, without additional measures, is unlikely to have much practical effect. If the types of employment or work which are too hazardous for young persons to perform are not designated specifically, there is usually no way for a young person to be prohibited from performing a particular dangerous job (see the General Survey of the Committee of Experts of 1981, [225].” See also CEACR Individual Direct Request Concerning Convention No 138, Papua New Guinea, 2005.

⁵⁷ Order No 183 of 2001, made under the 1959 Labour Code (as amended by Order No 24 of 2000), referred to in CEACR Individual Direct Request concerning Convention No 138, Syrian Arab Republic, 2005.

⁵⁸ See, for example, the Annex to the European Union Directive on the protection of young people at work (Council Directive 94/33/EC of 22

^{June 1994).}

The New Zealand position is that health and safety regulation applies generally to everyone who is over 14 years old. There is no express restriction on 16 and 17-year old young people doing potentially hazardous or injurious work as there is under the ILO standards, nor is such work specifically listed and prohibited. There would seem to be a need, however, to improve protection for workers who are aged 16 and

17 years old, particularly in light of New Zealand and international statistics that indicate that workers in the 15-19 age group have a high accident rate.

7. Concluding Observations

The current position is that the New Zealand government has been consulting with the International Labour Office in Geneva as to what New Zealand needs to do to comply with ILO Convention 138. There are a number of sticking points, as outlined above. New Zealand wants the Committee of Experts to see if there is some way around some of the clear obligations of Convention 138. New Zealand would like to persuade the ILO to change the way it has applied the Convention in the past so that it can achieve universal ratification. As matters currently stand, however, New Zealand would have to make a number of essentially small but highly inconvenient changes to its current regulatory framework before it can ratify the Convention.

One might question whether New Zealand needs to ratify Convention

^{138. The principal consequence of not ratifying Convention 138 is that}

^{there will be continued pressure in the form of negative reports from}

^{the ILO and United Nations treaty bodies, particularly the Committee}

^{on the Rights of the Child and the Committee on Economic, Social and}

^{Cultural Rights. New Zealand could easily weather such storms, as do a}

^{number of other countries, such as the United States and Australia, and}

^{it will only be the thin-skinned who are bothered by it.}

Given New Zealand’s present treaty commitments, however, it would be responsible to ratify Convention 138. It could be argued that if countries like New Zealand do not comply with international labour standards, how can the international community expect countries with manifestly poor labour standards to comply with them? Moreover, New Zealand does not have very many claims to fame in the international arena, but one that New Zealand does have is the reputation of being an “international good citizen”.

Non-compliance with Convention 138 also does not sit well with New Zealand’s 2001 policy framework on integrating fundamental labour standards into the country’s international trade agreements.⁵⁹ It is current New Zealand policy to promote compliance with the ILO’s core labour standards as set out in the eight fundamental ILO conventions,⁶⁰ which

59. See <www.mfat.govt.nz/Trade-and-Economic-Relations/NZ-and-the- WTO/Trade-Issues/0-labour-framework.php>.

^{60 See the 1998 ILO Declaration on Fundamental Principles and Rights at}

include ILO Convention 138. If New Zealand is not itself compliant, this runs against the policy that New Zealand proposes to apply to its trade partners.

On the other hand, there are undoubtedly problems with Convention

^{138, perhaps fundamental problems. Although many countries have}

^{ratified the Convention, it has proved difficult, if not impossible, to}

^{comply with all aspects of it, even with the best will in the world. The}

^{numerous ratifications must therefore be tempered with the realisation}

^{that few countries actually are able to comply with all of its prescriptions.}

^{The Convention takes a “rigid abolitionist approach” towards child}

^{labour,61 and its basis of minimum age for admission to particular}

^{types of employment has been described as not only ineffective, but}

^outmoded.62

The decision whether or not to further regulate child labour in New Zealand is ultimately a political one, and it will not by any means be universally palatable. It will be viewed by many as an unnecessary constraint on what young people can and cannot do, and this view is probably fair enough as far as most situations of work by children are concerned. History has shown that New Zealanders do not like regulation in this particular area, and experience around the world has shown that child labour is very difficult and awkward to regulate.

One matter, however, cannot be disputed: there is not enough information available to determine whether there is actually a child labour problem in New Zealand. Accordingly, a starting point should be the more systematic gathering of data. This is one requirement of ILO Convention 138 that should be fulfilled, if only to reassure ourselves that there is no domestic problem. It is probably premature to conclude with confidence that there is no child labour problem in New Zealand. Such information as is available, both local and comparative, is that younger workers tend to have more workplace accidents.

If there is a problem, it will not be helped by recent changes to the minimum wage law. On 1 April 2008, the youth wage, which applied to

16 and 17 year olds, was replaced by a “new entrants” wage.⁶³ This rate applies for the first 200 hours of work or three months of employment, whichever comes first. After this period has been served, the regular

Work, discussed earlier.

^{61 Ben White “Shifting Positions on Child Labor: The Views and Practice of}

^{Intergovernmental Organizations” in Burns H Weston (ed), Child Labor}

^{and Human Rights: Making Children Matter, (London, 2005) at 229.}

^{62 See, for example, Marianne Dahlén The Negotiable Child: the ILO Child}

^{Labour Campaign 1919-1973 (Uppsala University, Uppsala, 2007) Michael F}

^{C Bourdillon, Ben White, and William E Myers “Re-assessing minimum-}

^{age standards for children’s work” in Child Work in the 21st Century:}

^{Dilemmas and Challenges, (2009) 29(3/4) International Journal of Sociology}

^{and Social Policy 106.}

^{63 See s 4(1)(b) of the Minimum Wage Age 1983, as amended by the Minimum}

^{Wage (New Entrants) Amendment Act 2007.}

adult minimum wage will apply.⁶⁴ The result is that 16 and 17 year olds will be entitled to the minimum adult wage for the first time. This is likely to create an incentive for employers to seek younger workers to avoid paying the adult minimum rate, and there may be a sharp increase in the number of workers who are younger than 16. Unfortunately, it will not be known for certain whether or not this will happen, as there are no means currently in place for systematically collecting this sort of information.

64. Under the Minimum Wage Order 2009 (SR 2009/28), the new entrant rate is $10 per hour, and the adult rate is $12.50 per hour.