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Kids at work?

By Scott Wilson, Partner & Josie Toop, Solcitor

First Published in Safeguard Magazine, Issue 111, September/October 2008.

For many parents, it is almost a Kiwi tradition to bring children to work from time to time.  However, tragedy can result if an accident occurs. 

Employers can also face significant impacts if a young person is killed or injured in the workplace. Besides the trauma of the accident itself and dealing with distraught employees and parents, there is the monetary cost of potential prosecution, subsequent fines and reparation, and associated bad press to consider.

There are many reasons why children might be in the workplace.  Children sometimes accompany their parents during the school holidays when no childcare is available or for work experience.  Many young people have after school or holiday jobs.  

Children growing up on farms often help out and may be around dangerous machinery and ATV motor vehicles.

The introduction of facilities, where practicable, for breastfeeding in workplaces may also increase the prevalence of infants in the workplace.

The recent prosecution of rubbish collection company Street Smart Limited, following the death of the 12 year old son of one of its workers, has highlighted the need for employers to carefully consider their health and safety obligations to any young people in their workplace. 

In that case, one of Street Smart’s employees had brought his son along with him to work.  The 12 year old slipped from the rubbish collection truck and was crushed to death under the back wheel.  

Street Smart was held to be culpable, in part because the Court considered it had not taken sufficient action on a previous occasion where it had found out that the employee had taken his son to work; it had merely told the employee that his son was not allowed to work on the truck. The Court said that Street Smart should have suspended the employee for disobedience of the company policy, and by not doing this, Street Smart had effectively condoned the situation.

Street Smart was found not to have taken all practicable steps to ensure that their employee’s actions or inactions, while at work, did not harm other people.  It was fined $55,000 (recently increased on appeal to $87,500), in addition to the $60,000 to be paid to the boy’s family.

Sadly, this was not the first time Street Smart had been prosecuted for health and safety lapses.  In 2001, a 16 year old contract worker was killed when he was trapped in the compactor blade of the rubbish truck he was working on.

Tragedies like this serve to remind us that the Health and Safety in Employment Act 1992 applies equally to protect children and young people working in or visiting the workplace.

Indeed, young people are more vulnerable as they are likely to be less aware of workplace hazards and ways in which to keep safe.  As such, additional steps to ensure their safety should be taken. 

When it comes to adult workers bringing their children into work, evaluate whether this is appropriate at all in your workplace. Each workplace is different with different hazards and dangers. An office environment will be more child friendly than a factory with machinery, forklifts or vehicles.  The age of the child may also be a factor in the likelihood of an accident.  But even with older children and less hazardous workplaces, there could still be some risk attached. 

The company’s Health and Safety policy should clearly set out its stance on bringing children into the workplace.  The policy should also be communicated to all staff and consistently enforced.  Breaches of health and safety standards should be treated as a serious matter with the employer taking decisive, and if necessary disciplinary, action. 

Of course, sometimes, it is not only appropriate but desirable to have young people visiting, doing work experience or employed in the workplace.  In such situations, employers must seriously consider the health and safety implications, including identifying where extra hazards may arise, and eliminating, isolating or minimising them.    Young people in the workplace, whether visitors on work experience or workers, must be adequately inducted and trained and closely supervised at all times. 

Young people are protected under the Health and Safety in Employment Act in the same way as older employees.  However, the Health and Safety in Employment Regulations 1995 also provide additional safeguards for young workers and bystanders in the workplace. In particular:

• Certain jobs are off limits (though there are some exceptions). Employees under the age of 15 cannot work in any area where logging, construction, manufacturing or any other work that is likely to harm them is taking place.   Young people under 15 cannot even be present in these areas unless they are under direct adult supervision at all times.  
• In all workplaces, employees under 15 cannot undertake any work that is likely to cause harm, for example operating or assisting in operating machinery, lifting weights, driving or riding on certain vehicles.
• Employees under 16 cannot be employed between 10pm and 6am.

Approved Codes of Practice may set out other guidelines specific to various industries. 

In a culture where parents are generally seen to be responsible for their children, it is easy to forget that employers can face liability if young people are killed or injured in the workplace.

Minimising the risk of harm to children is crucial not only from a liability perspective, but also from a societal one; children are our future - keep them safe.