Minimum age for hazardous work
Convention No. 138 and Recommendation No. 146
Convention No. 138 establishes an obligation to set a higher minimum age of 18 for hazardous work (Article 3).
The Convention foresees that there might be work that is not placed in the same category as hazardous work, but still requires more maturity or physical development than at age 15. Thus the age could be set at 16 or 17 for certain kinds of work. The Convention provides that age 16 may be designated on condition that:
Both these conditions must be fulfilled to allow such a lower age, as well as prior consultation with the employers' and workers' organizations concerned. This means that truly hazardous work is still to be subject to a minimum age of 18.
Though not adopted as a provision in the Convention, there was a feeling among some delegates to the International Labour Conference that adopted Convention No. 138 that any exceptions to age 18 should be on an individual case-by-case basis. Countries may wish to pursue that option to provide maximum protection.
Definition of hazardous work
"any type of employment or work"
This refers to activities and not necessarily occupations as a whole, though entire occupations can be designated. The work does not depend upon a contract of employment or other formal employment relationship.
"by its nature or circumstances in which it is carried out"
Because this provision refers to work "likely" to jeopardize the safety, health or morals of young persons and not only work which is recognized as having that effect, it is necessary to examine both the nature of the work and the circumstances in which it is carried out. The competent authorities are to take into account that certain types of activities which are not in themselves hazardous may become so in certain circumstances, for example, depending upon the hours of work, the place of work and the working conditions and environment.
"likely to jeopardy their health, safety and morals"
"Health and safety" refers not only to physical dangers, but also extends to other factors such as stress and psychological well-being. This provision also relates to work which poses dangers to the morals of young persons. Examples in national law include prohibited work in establishments which sell alcoholic beverages, or more generally in cabarets, night clubs and the like, and in the making, selling or distributing of writings, pictures, videotapes or other items which threaten the morals of young persons.
Methods for determining hazardous work
The Convention also provides that the types of employment or work concerned shall be determined by national laws or regulations or by the competent authority, leaving it to the individual countries to determine the content of these activities. Whatever the method chosen, it is necessary that a determination be made, and for this purpose prior consultations must be held with the concerned organizations of employers and workers, if they exist in the country.
"determined by national laws or regulations or competent authority"
While the exact method is left up to countries, the absence of a determination signifies non-fulfilment of an obligation of the Convention. There are also practical difficulties inherent in not making a definite determination, for example, concerning imposing sanctions for violations, giving notice to employers and providing clear guidelines to inspectors.
"after consultation with the concerned organisations of employers and workers"
Consultation is obligatory before the determination of the types of hazardous work is made. These groups should be good resources with knowledge of the requirements of different kinds of jobs and occupations, but they must also be aware that work affects young people differently than adults. Work which might seem safe for an adult can carry special risks for young people.
Recommendation No. 146 gives further guidance on determining hazardous work:
Safety and health Conventions
Provisions having relevance to the fixing of a minimum age for employment or work to protect children from particularly hazardous or arduous work are also found in some Conventions usually not considered as child labour Conventions. The following safety and health Conventions contain minimum ages for specific work or work processes:
Problems in national legislation
Shortcomings in national legislation are particularly frequent regarding the requirements of a higher minimum age, as well as other protective conditions of work where hazardous work is concerned Almost all countries have adopted some measures to prohibit or restrict dangerous work by young persons, though a great number of countries fad to cover comprehensively employment or work in hazardous or dangerous work by young persons.
Approaches vary considerably. Several countries have made little or no determination of what specific kinds of work are covered by the prohibition. Where prohibitions exist, the most frequent method is to forbid certain jobs or categories of jobs, for example, working with machinery of various sorts or in specified occupations. Another approach is to set the minimum age for employment or work in certain sectors, most often in factories or on ships, at a higher age than for other employment or work.
In some countries, the definition of hazardous work is limited to a general statement concerning work that is "dangerous, dirty, unhealthy or detrimental to morals", and no further elaboration of activities is provided, or administration authorities are to define it. In other cases, hazardous occupations are listed in some detail, with or without authority given to administrative authorities to update or supplement the lists.
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