Convention No. 138 and Recommendation No. 146
The principal commitments of a State which ratifies Convention No. 138 are to:
• pursue a national policy designed to ensure the effective abolition of child labour; and
• raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.
Convention No. 138 is not a static instrument prescribing a fixed minimum standard, but a dynamic one aimed at encouraging the progressive improvement of standards and promoting sustained action to attain the objective of eliminating child labour.
Recommendation No. 146 contains the broad policy frame-work and measures for the prevention and elimination of child labour. To ensure the success of the national policy provided for in the Convention, the Recommendation states that:
high priority should be given to planning for and meeting the needs of children and youth in national development policies and programmes and to the progressive extension of the inter-related measures necessary to provide the best possible conditions of physical and mental growth for children and young persons.
The Recommendation provides that special attention should be given to developing policies in the fields of:
• employment promotion;
• income generation and alleviation of poverty;
• social security and family welfare; and
• education and training.
Box 2.5. Policy in national legislation, Portugal
The Government of Portugal makes specific reference to the Minimum Age Convention, 1973 (No. 138), in its law, with a cross-reference to the Law on the Education System which establishes nine years of compulsory basic education, thus establishing a direct link between the minimum age for admission to employment or work and the age of compulsory education. It also has taken up suggestions from Recommendation No. 146. For example, it establishes the minimum age for admission to work at 16 years and refers to the following measures as being adopted in the light of Recommendation No. 146: policies to promote employment, including financial incentives to promote employment of young persons above age 18 and vocational training; measures on professional schools and training; and measures to combat poverty.
Particular attention should be given to the needs of children without families and migrant workers. Full-time compulsory education or training is also called for, at least up to the minimum age for employment or work.
Adopting national policies
The special merit of a national policy is that it articulates societal objectives and commitment and, if pursued faithfully, provides a coherent framework for an associated programme of action. A complete and implementable national policy and programme of action will contain at least the following elements:
• a definition of national objectives regarding child labour;
• a description of the nature and context of the problem;
• identification and description of the priority target groups;
• description of the main programme areas and types of interventions; and
• designation of the institutional actors to be involved.
While some countries rely on the legislative process as the main means of developing a national policy on child labour, many are developing broader policy frameworks including programmes of action.5 The following steps are often taken by countries in adopting a national policy:
5 For example, Bangladesh, India, Indonesia, Nepal, the Philippines, the United Republic of Tanzania, Thailand and Turkey.
STEP 1: Collection of reliable information through surveys and other methods of assessing the child labour problem.
STEP 2: A forum for governments, employers' and workers' organizations, and NGOs to reflect on the strengths and weaknesses of existing policies and programmes.
In countries such as Bangladesh, Indonesia, Kenya, the Philippines, Thailand and Turkey national seminars or conferences led to the adoption of national programmes of action, which go beyond a statement of intent and set out strategies to combat child labour.
Box 2.6. Comments by the ILO Committee of Experts
The ILO Committee of Experts examines a broad range of measures as evidence of a national policy to eliminate child labour. The policy could be one piece of legislation or a body of law which serves as a comprehensive policy on child labour. Such a policy, for example, could include legislation on minimum age, compulsory education, broad implementing legislation which establishes institutional structures, and a combination of provisions which address some of the root causes of child labour.
Examples are given below from recent comments by the Committee of Experts related to application of Article 1 of the Convention on the pursuance of a national policy to abolish child labour.6
6 ILO: Report of the Committee of Experts, Report III (Part 1A), International Labour Conference, 85th Session, Geneva, 1997, pp. 384, 386, 387; ibid, 86th Session, 1998, pp. 432-433, 435-436.
In assessing whether a national policy for the abolition of child labour was being pursued, the Committee noted the role played by the Ministry of Technical Education and Vocational Training with a view to matching training and employment and improving skills, and the role of the Ministry of Social Affairs to ensure the protection and well-being of children and young persons. At the same time, the Committee wished to know whether coordination and consultation mechanisms had been established or envisaged in the application of a national policy designed to ensure the effective abolition of child labour.
The Committee noted with interest that the payment of the child allowance for children of school age, established by the Act on social aid, is made by schools in order to enforce school attendance during compulsory education. Concerning the reported increase in the number of children who live and work in the street, the Committee asked what measures the Government was pursuing in this regard as part of the national policy to ensure the effective abolition of child labour in accordance with Article 1 of Convention No. 138.
The Committee noted that the Code of Childhood and Adolescence contains several provisions aiming at the protection of young workers; it sets forth the right of children and young people to be protected from economic exploitation, and engagement in whatever work that may be dangerous to their physical and mental health or which hinders their education (section 53 (1)), and declares that childhood should be dedicated to education, sports, culture, and recreation suitable to their age (section 53 (2)).
Furthermore, the Committee noted that the Plan of Social Development (PLADES 1996-2000) contains policies focused on child labour, with a view to progressively raising the minimum age for admission to employment; that the Unit of Young Workers of the Ministry of Labour and Social Providence has been instituting awareness campaigns for employers, parents and children concerning their rights under labour law and their right to formal education; and that the Memorandum of Understanding was signed in June 1996 with the ILO regarding IPEC.
The Committee requests the Government to continue to supply information on developments concerning the national policy for the elimination of child labour, concrete measures taken accordingly, and progress made in the application of the Convention in practice.
The Committee noted with interest the ample information submitted with the Government's report concerning the national policy aiming at the abolition of child labour, and the wide variety of economic and social measures taken in relation to this policy. For instance, the IXth National Plan includes provisions on promoting participation of civil society in the protection and socialization of childhood and adolescence, on special programmes aimed at the reinsertion of those excluded from the education system, on the creation of a Social Network for Protection of Childhood and Adolescence, and on the widening and diversification of services offered by the National Institution of Minors (INAM) for children and adolescents in especially difficult circumstances.
The problem of child labour is also addressed in the Intersectoral Plan of Attention to Childhood and Adolescence, including the introduction of a system of registering children and young persons who are working, and the eradication in seven years of work by children under 12 years of age. Decree No. 1366 of 12 June 1996 establishes a programming of family subsidy, beneficiaries of which include low-income families with children receiving basic education (1st to 6th grades). Documents called "Agenda Venezuela" also contain various social measures to mitigate the effects of the macroeconomic adjustment programme.
The Committee requests the Government to continue to supply information on measures relevant to the effective abolition of child labour, and also to include statistics and extracts from inspection reports which would help the appreciation of the application of the Convention in practice.
STEP 3: Identification of priority target groups in the programmes of action.
Examples are provided in box 2.7.
Box 2.7. Identifying priority target groups in national programmes of action
Children who are:
• apprentices in the informal sector;
• young girls in urban areas (domestic service, servants, sales girls); and
• workers in agriculture.
Children who are:
• working in hazardous employment such as in the production of glass, brass, locks, gems, matches, fireworks, slates, tiles, carpets and bidis (cigarettes).
Children who are:
• scavengers in dump sites;
• working in sea-fishing;
• working on jermals (offshore fishing);
• working in deep-sea pearl diving; and
• working as street hawkers.
Children who are:
• in domestic service;
• working in the service sector;
• working in commercial agriculture;
• working in quarrying and mining;
• working in the tourist sector; and
• working in the informal sector.
Children who are:
• working in hazardous and abusive work;
• in prostitution;
• in bonded labour; and
Children who are:
• victims of trafficking;
• working in mining and quarrying;
• working in home-based industries, especially under subcontracting arrangements;
• trapped in prostitution;
• working on sugar-cane plantations;
• working on vegetable farms;
• engaged in pyrotechnics production; and
• engaged in deep-sea diving.
Children who are:
• under 13 years old;
• working in hazardous working conditions;
• working in illegal establishments;
• under confinement; and
• in work which is physically and/or sexually abusive.
STEP 4: Identification of main programme areas and types of interventions in the programmes of action.
Main programme areas usually include review and revision of legislation, enforcement, awareness-raising, improvement of education and training, capacity building of organizations in combating child labour and the development of specific rehabilitation programmes. Concerning legislation, the first step is to review the legal situation, determine if there are inconsistencies, confusion and insufficiencies in the law, and identify priority areas for legislative change. Even though action can be taken in areas to which the law has not been extended, it is preferable to extend the coverage of the law as widely as possible, in particular to the priority areas which have been identified.
Box 2.8. Reviewing legislation in Nepal
As part of its strategy toward the elimination of child labour, the Government of Nepal held a national workshop on policy and programming on child labour. The preparatory work included an analysis of the national legislative framework and recommendations for change.7 It identified relevant national legislation which included The Children's Act 1992, the Labour Act 1992 and Labour Rules 1993, the Common Law Code 1963, the Foreign Employment Act 1985, the Flesh Trafficking (Control) Act 1986, Citizen Rights Act 1955, Begging (Prohibition) Act 1962, and the Prison Act 1963. Thus, numerous laws contained provisions on the employment or work of children. In the process, the Government identified anomalies in the law, areas where harmonization was needed, for example concerning ages and definitions, and areas for strengthening the law.
7 ILO-IPEC: Child labour in Nepal, Volume II, An overview and proposed plan of action, prepared for the National Workshop on Policy and Programming on Child Labour, Kathmandu, 22-25 August 1995.
It was concluded that the legislative scheme needed further review and improvement by, for example, consolidating into one Act, as far as possible, the provisions on employment and self-employment of children, and work done by children in domestic service and work in family undertakings; by applying the provisions to all work, including self-employment; by progressively extending labour inspection to cover all kinds of workplaces; by raising the minimum ages as the economy and educational facilities develop; and by making the penal provisions more stringent to act as a deterrent. In addition, it was recommended that legislation should be adopted to implement the constitutional provisions on bonded labour, including establishing an effective agency for enforcing the law and providing for the rehabilitation of the bonded labourers. To facilitate enforcement of child labour provisions, it was also recommended that the implementation of the Birth, Death and Other Personal Incidents (Registration) Act 1976 be strengthened so that an authentic record of the age of a child would be available.
STEP 5: Adoption of a national policy and programme of action geared towards the immediate elimination of the worst forms of child labour.
An example of a targeted policy is given in box 2.9.
Box 2.9. National policy and plan of action for the prevention and eradication of the commercial sexual exploitation of children, Thailand
Within its overall strategy to combat child labour, the Government of Thailand adopted a national policy and plan of action for the prevention and eradication of the commercial sexual exploitation of children in Thailand in 1996. Legislation is an integral part of the policy.8
8National Policy and Plan of Action for the Prevention and Eradication of the Commercial Sexual Exploitation of Children, Thailand, National Committee for the Eradication of Commercial Sex, National Commission on Women's Affairs, Office of the Prime Minister, Thailand, 1996.
The aims of the National Policy in combating the commercial sexual exploitation of children are:
• preventing and eliminating entry by children under 18;
• prohibiting luring, threats, exploitation, and acts of violence in operating a commercial sex business; and
• punishing those who bring children into the business and officials who fail in their duty to enforce relevant policies, laws, rules and regulations.
Five major plans have been adopted as part of the Policy (1997-2006) which are geared towards:
• assistance and protection;
• rehabilitation and adjustment to normal life; and
• establishment of structures, mechanisms and systems for supervising, controlling, following up and speeding up implementation.
Legislative measures taken were:
• adoption of the Prostitution Prevention and Suppression Act; and
• the Rape and Child Pornography amendment to the Penal Code Amendment Act.