Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS ACT - PART 2 - HIRING EMPLOYEES

ESA Section 9 – Hiring children


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section sets the requirements for employing children under the age of 15 and explains the director’s authority to establish special conditions of employment for any child under the age of 12.


Text of Legislation

9. (1) A person must not employ a child under 15 years of age unless the person has obtained the written consent of the child's parent or guardian.

(2) A person must not employ a child under 12 years of age without the director's permission.

(3) On permitting the employment of a child under 12 years of age, the director may set the conditions of employment for the child.

(4) An employer must comply with the conditions of employment set under subsection (3).


Policy Interpretation

Subsection (1)

Employment of any child 12, 13 or 14 years of age is only permissible under the Employment Standards Act where an employer has obtained the written consent of the child’s parent or guardian.

“Guardian” is defined in Black's Law Dictionary, 7th ed., as “one who has the legal authority and duty to care for another's person or property, esp. because of the other's infancy, incapacity or disability.”

Employers will face escalating monetary penalties, subject to s.98 of the Act, if they employ a child under the age of 15 without the written consent of the child’s parent or guardian.

In addition to obtaining written consent from the parent or guardian, the employer must comply with the conditions of employment as set out in the Employment Standards Regulation Part 7.1 – Division 1 – Children Generally or Division 2 – Children in Entertainment Industry.

Section 126(1) of the Act provides that if there is an alleged contravention of s. 9(1), the burden is on the employer to prove an employee is 15 years of age or older.

Subsection (2)

This subsection does not apply to a child employed in the entertainment industry covered by Part 7.1 - Division 2 of the Employment Standards Regulation.

Employment of a child under the age of 12 is only allowed with the permission of the Director of Employment Standards. The director will carefully assess each situation. If there is concern about the safety of the work site or the child's ability to function in an employment relationship, the permit will not be granted.

Before a permit will be granted, the employer must demonstrate that:

  • The parent or guardian has given their written permission;
  • The school has given its written permission;
  • The child will be under direct and immediate adult supervision at all times;
  • The child will not be exposed to dangerous chemicals, noxious substances or highly flammable material;
  • The child will not work at or near hot surfaces (i.e. cooking grills, deep fryers, coffee maker, etc.);
  • The child will not operate inherently dangerous equipment, machinery or power tools (i.e. paper shredder, lawn mower, nail gun, etc.);
  • The child will not work in an inherently dangerous work environment (i.e. a construction site); and
  • The child will not be required to make his or her own way to and from the work site.

The director will also consider such things as:

  • The degree to which the child can physically be expected to perform the work;
  • Whether the child has the maturity to function in a work environment;
  • The child’s ability to understand the nature of an employment relationship;
  • The child’s ability to understand health and safety issues in the workplace.

The director may cancel or suspend a child employment permit at any time if he is concerned about the health and welfare of the child, or if the conditions of employment set out in the permit are not being followed.

The required application forms are available at: Employment Standards Forms.

Employers will face escalating monetary penalties, pursuant to s.98 of the Act for employing a child under the age of 12 without the director’s permission.

Section 126(1) of the Act provides that if there is an alleged contravention of s. 9(2), the burden is on the employer to prove an employee is 12 years of age or older.

Subsection (3)

This subsection does not apply to a child employed in the entertainment industry covered by Part 7.1 - Division 2 of the Employment Standards Regulation.

Permission to employ a child under the age of 12 will only be granted where the director is satisfied, after an investigation, that the health, welfare, and safety of the child will not be compromised.

The director may set any condition of employment appropriate for the child. These conditions may include, but are not limited to:

  • Restricted hours of work;
  • Requirements regarding transportation;
  • Direct adult supervision;
  • Additional safety precautions;
  • Restrictions on the type of work performed; and/or
  • Specific locations of work.

Permission from the director does not relieve the employer of responsibility to ensure that the child’s work is not of a dangerous nature or detrimental to the welfare of the child.

Workplace health and safety matters are addressed by the Occupational Health and Safety division of WorkSafe BC.

Subsection (4)

This subsection does not apply to a child employed in the entertainment industry covered by Part 7.1 - Division 2 of the Employment Standards Regulation.

Where permission has been granted by the director to employ a child under the age of 12 and special conditions of employment have been established by the director, failure by the employer to comply with any of the established conditions is a contravention of this section of the Act.

Employers will face escalating monetary penalties pursuant to s.98 of the Act for failing to comply with the director’s permitted conditions of employment.

Children in entertainment industry

Sections 9(2), (3) and (4) of the Act do not apply to children working in the film industry in British Columbia. See Employment Standards Regulation Part 7.1 - Division 2 for regulations governing the employment of children in the entertainment industry.

“Sitters”

It is not uncommon for a “sitter” to be under 15 years of age. “Sitters” are excluded from the Employment Standards Act under s.32(1)(c) of the Employment Standards Regulation.

Employees covered by a collective agreement

Under the provisions of s.3, parties to a collective agreement are prohibited from giving up the specific employment protection provided in s.9 (employment of children). Employers, employees and unions may not negotiate terms and conditions that do not meet the standards set out in this section.

Under s.3(7) of the Act, where there is a collective agreement, the enforcement of matters relating to s.9 is through the grievance procedure, not through the enforcement provisions of the Act.


Related Information

Related sections of the Act or Regulation

ESA

ESR

Other

See Employment Standards Factsheets

Factsheets

Talent Agencies in British Columbia

Employment of Young People in the BC Entertainment Industry

Employment of Young People in BC - General