Employment Law

Can a child sign a contract of employment under Australian law?

Published in: April 2017

We’ve all probably had jobs as teenagers that may have involved flipping burgers, serving coffee, or some sort of apprenticeship – all without thinking too much about the contract of employment. However, if we actually took a moment to reflect, the question that may arise is: How does the law give efficacy to employment contracts signed by a minor? In most instances, a child is unable to enter into a contractual relationship until they reach 18 years of age. Yet, when we head over to the local fast food restaurant and order a burger with fries, we’re almost certainly going to be served by someone who still cannot legally purchase alcohol. So what gives?

Do children have the capacity to enter into an employment contract?

The general rule of capacity to enter into a contract is still applicable when it comes to employment contracts and minors. If we look towards the common law, minors can only enter into a contract for the supply of necessities, and must also be for their benefit as well.

What is meant by supply of necessities?

The ‘supply of necessities’ in reference to a minor, generally means food, clothing, shelter and access to medical treatment.

In defining supply of necessities, the courts have usually given the concept a wide interpretation – such as a contract of apprenticeship. However, in order for a contract of apprenticeship to meet the supply of necessities test, it must also be for the child’s benefit.

How can a contract of employment be a benefit to the child?

In contrast to the ‘supply of necessities’, the courts tend to construe the concept of ‘benefit’ more narrowly, as a consequence, when assessing whether the contract is beneficial to the child, a balance between the advantages and disadvantages of the contract will generally be looked at. Furthermore, the contract will be looked at as a whole and the circumstances surrounding each individual case will also be looked at to see if the contract is a benefit to the minor.

Although, a contract of employment may be considered as benefitting a child if either it provides a means for self-support, or provides a means for gaining instruction or education, thus, allowing the child to earn a living via a trade or profession may be some of the relevant factors. 

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