The law should state to which industries, occupations and type of activity it applies, or provide broad coverage by providing no exclusions. The broadest coverage possible is desirable.
Convention No. 138 and Recommendation No. 146
Convention No. 138 covers all economic sectors and all employment or work. This means that a child's work can be prohibited or restricted whether or not there is a formal employment relationship.
Box 2.10. Coverage of the law
The Committee of Experts has noted recently its satisfaction with changes in law that provide broader coverage. For example, the Committee referenced the adoption of the Work Place (Protection of Young Persons) Regulations 1996, by Malta, and noted with satisfaction that section 3 (2) prohibits not only employment under a contract of service or otherwise, but also prohibits providing work which includes service as a homeworker or as a self-employed person to a young person of compulsory school age (i.e. a person 5 years or older who has not reached age 16).
Exclusion for problems of application
The Convention provides for several flexibility provisions. The first one relates to the exclusion of limited categories of employment or work for which special and substantial problems of application arise, after consultation with organizations of employers and workers. However, work that is likely to jeopardize the health, safety or morals of young persons may not be excluded under this provision (Article 4). States must review excluded categories on an on-going basis and make progress towards eliminating the special and substantial problems which make broad application difficult.
The limited categories are not listed in the Convention. However, during the preparatory work, some ILO constituents indicated that it would be difficult to cover child labour in family undertakings, domestic service in private households and some types of work carried out without the employer's supervision, for example, home work9, because of practical difficulties of enforcing laws in the categories in question - not because of the absence of possible exploitation or abuse in these situations. Coverage in these sectors is encouraged because they are the source of most child labour.
9 The Home Work Convention (No. 177), adopted in 1996, calls for the promotion of equal treatment between homeworkers and other wage earners in relation to minimum age, among other things; the Home Work Recommendation (No. 184) suggests programmes to eliminate child labour in home work.
Box 2.11. Extension of coverage in Sweden
An example of a country having recourse to this provision is Sweden, which had excluded domestic work under Article 4 in its first report to the ILO after ratification of the Convention. The Committee of Experts has recently noted with satisfaction that Sweden has now changed its law so that work done by employees under the age of 18 in the employer's household is covered by the Work Environment Act, which fixes the minimum age for admission to employment. As a consequence, the exclusion of domestic work in the employer's household from the application of the Convention is no longer necessary.
Limiting the scope of application
This flexibility provision applies to developing countries. A country whose economy and administrative facilities are insufficiently developed may initially limit the scope of application of the Convention to certain branches of economic activity or types of enterprise (Article 5) following consultation with organizations of employers and workers. The following sectors, however, must be covered as a minimum:
• mining and quarrying;
• electricity, gas and water;
• sanitary services;
• transport, storage and communication; and
• plantations and other agricultural undertakings mainly producing for commercial purposes. (This, however, allows exclusion of family and small-scale holdings producing for local consumption and not regularly employing hired workers.)
Countries limiting application initially are still to report on child work in excluded categories and on their progress towards achieving broader coverage of the law. This clause can only be used at the time of ratification. Thus a country will commit itself at the beginning to broad coverage or to progressive coverage of branches of economic activity or types of enterprise.
Recommendation No. 146 suggests that where a minimum age is not immediately fixed for certain branches of economic activity or types of undertaking, appropriate minimum age provisions should be made applicable to types of employment or work which present hazards for young persons. The Recommendation also provides that where it is not immediately feasible to establish a minimum age for all employment in agriculture and in related activities in rural areas, a minimum age should be fixed at least for employment on plantations and in other agricultural undertakings (paragraphs 8 and 11).
Without general coverage of the law the objective of the elimination of child labour cannot be achieved.
Exclusion for work as part of education and training
Work for general, vocational or technical education or other training institutions, and work in undertakings performed by those at least 14 years old, is not covered by the Convention if:
• it is performed according to conditions prescribed by the competent authority;
• there has been consultation with the organizations of employers and workers concerned; and
• it is part of authorized training.
To come under this exclusion, the education or training must be an integral part of:
• an education or training course for which a school or training institution is primarily responsible;
• a programme of training (apprenticeship) mainly or entirely in an enterprise where the programme has been approved by the competent authority; and
• a programme of guidance or orientation designed to facilitate the choice of an occupation or of a line of training.
Countries should pay special attention to how education, training and apprenticeship programmes are conducted. The assumptions often are that:
• work in educational and training institutions is well controlled and that there is a small risk that young persons will be exposed to detrimental effects normally associated with employment; and
• apprenticeships are carried out under a form of contract of employment, usually within a formalized programme under the supervision of national education authorities, and, thus, are subject to extensive and detailed regulation.
This, however, is often an area of abuse. Laws applicable to vocational education, training and apprenticeship programmes should ensure protection of young persons from hazardous work. Training should meet the criteria of the Convention and should not be a subterfuge to avoid child labour provisions. Therefore, Recommendation No. 146 speaks of the importance of measures to "safeguard and supervise the conditions in which children and young persons undergo vocational orientation and training" (paragraph 12 (2)).
Exceptions for artistic performances
Exceptions from the basic minimum age can be granted:
• after consultation with the organizations of employers and workers concerned; and
• by permits in individual cases which must:
• limit the number of hours that can be worked, and
• specify the conditions of work.
Box 2.12. Comments by the ILO Committee of Experts on artistic performances
Recent comments in the ILO's Committee of Experts on the Application of Conventions and Recommendations have been addressed to legislative developments in some countries concerning the process for granting exemptions for artistic performances. In Belgium, for example, a 1992 law provides that, through an individual authorization from the competent Minister, work by children may be authorized in specific cases such as theatrical roles, fashion shows or participation in fashion photographic sessions. The application to obtain an individual derogation from the prohibition of child labour can only be made personally by the organizer, who must be resident in Belgium, and not by impresarios or agencies. The competent official who issues the derogation may establish a whole series of specific measures according to the activity and may interview the child.
The Committee of Experts also noted with satisfaction an amendment to Swedish law which changes the exemption for artist performances. Previous law provided a general exclusion of artistic performances and similar work as long as it was not hazardous and did not entail excessive strain. The new provision permits the employment of a child under the age of 13 only by an individual permission from the Labour Inspectorate, as required by Article 8 (1) of the Convention, and on condition that the work is not hazardous and does not entail excessive physical and psychological strain on the child.