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Minimum Age Convention, 1973 (No. 138) - Eswatini (RATIFICATION: 2002)

The Committee takes note of the Government’s first report. It also notes with interest that Swaziland ratified the Worst Forms of Child Labour Convention, 1999 (No. 182), on 23 October 2002. The Committee requests the Government to provide information on the following points.

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour. The Committee notes that the Government’s report does not contain any information on this point. It notes however that a draft Constitution is being considered which contains provisions on the rights of the child. In particular, under draft article 30(1), a child has the right to be protected from engaging in work that constitutes a threat to the health, education or development of that child. The Committee also notes that a new Employment Bill is under consideration, with regard to which the Office has provided its comments. The Committee recalls that, under Article 1 of the Convention, each Member for which this Convention is in force undertakes to pursue a national policy designed to ensure the effective abolition of child labour and to 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. The Committee requests the Government to provide information on the national policy measures taken or envisaged to effectively reduce and eliminate child labour. It also asks the Government to keep it informed of the steps taken with a view to the adoption of the draft Constitution and the draft Employment Bill and to provide the texts once they have been adopted. In this regard, the Committee hopes that the Government will take into account the comments from the Office on the draft Employment Bill.

Article 2, paragraph 1. Scope of application. 1. Self-employment. The Committee notes that, according to section 21(2) of the Employment Act, any person, of or above the age of 15 years, may enter into a contract of employment, defined as a contract of service, apprenticeship or traineeship, whether it is oral or in writing. The Employment Act therefore appears to exclude work performed outside the framework of a contract of employment, such as self-employment, from its scope of application. The Committee draws the Government’s attention to the fact that Article 2, paragraph 1, provides that no one under the specified minimum age shall be admitted, not only to employment, but also to any form of work in any occupation. The Committee therefore requests the Government to indicate which provisions of the national legislation, if any exist, set forth the prohibition upon persons under 15 years of age from performing any work outside the framework of an employment contract.

2. Agricultural sector, domestic work and family undertakings. The Committee notes that, pursuant to section 2 of the Employment Act, domestic employment, agricultural undertakings and family undertakings are not included in the definition "undertaking" and therefore not covered by the minimum age provisions of section 97. The Committee reminds the Government that by virtue of Article 2, paragraph 1, of the Convention, the specified minimum age for admission to employment or work shall apply to employment or work in any occupation. No one under that age shall be admitted to employment or work in any occupation, subject to Articles 4-8 of this Convention. It also notes that the Government has not availed itself of the possibilities of exclusion of limited categories of employment or work as envisaged in Article 4. The Committee therefore requests the Government to indicate whether other provisions of the national legislation applicable to these categories of workers prohibit the employment or work of such workers under 15 years of age. If not, it requests the Government to take the necessary measures to ensure that the provisions of the national legislation respecting the minimum age for admission to employment or work are also applicable to workers employed in agricultural and family undertakings as well as domestic workers.

Article 2, paragraph 3. Age of completion of compulsory education. The Committee notes the absence of information on this point in the Government’s report. It notes however that, according to the information available at the Office, primary education in Swaziland starts at the age of 6 and lasts seven years and secondary education lasts five years. Education is neither free nor compulsory. It also notes that, according to article 30(6) of the draft Constitution every Swazi child shall have the right to free education in public schools at least up to the end of primary school within three years after the Constitution comes into force. The Committee further notes that section 97(2) of the Employment Act prohibits the employment of persons under the age of 15 in any undertaking during school hours, defined as school hours prescribed in accordance with the Education Act. The Committee requests the Government to provide information concerning education in Swaziland including the age at which the primary education starts and the age of its completion, and asks it to supply a copy of the Education Act or any other legislation relating to education in Swaziland. It also encourages the Government to pursue its efforts to provide free and compulsory education as a means to combat and prevent child labour.

Article 3, paragraphs 1 and 2. Minimum age for admission to and determination of hazardous work. The Committee notes that, according to section 98(3) of the Employment Act, no person shall employ a child (defined as a person under the age of 15) or a young person (defined as a person who attained the age of 15 but is under the age of 18) in premises which are wholly or mainly used for the sale of intoxicating drinks for consumption on the premises, work which is likely to cause injury to his morals or conduct, work underground, dangerous or unhealthy work, such other employment as the Minister may prescribe. The Committee notes however that the Government’s report contains no information on the existence of any other regulations specifying the types of employment or work, which by their nature or the circumstances in which they are carried out are likely to jeopardize the health, safety or morals of young persons under the age of 18. The Committee reminds the Government that, under the terms of Article 3, paragraph 2, of the Convention, the types of hazardous employment or work shall be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned. The Committee therefore requests the Government to provide information on the existing legal provisions, which determine a list of activities and occupations prohibited to persons below 18 years of age, in accordance with Article 3, paragraph 2, of the Convention, and asks to supply a copy of such regulations. It also requests the Government to provide information on the consultations held with organizations of employers and workers concerned on this subject.

Article 6. Vocational training and apprenticeship. The Committee notes that, according to section 18 of the Industrial and Vocational Training Act, in order to bind oneself as an apprentice or trainee, one must have reached the age of 15 years; completed any period of compulsory education required by law; have the qualifications required for a specific trade or occupation; and certified as medically fit for the work. Section 27(b) of this Act holds as null and void any term of a contract of apprenticeship or traineeship, which requires an apprentice or trainee to work overtime. It also notes that, pursuant to section 30 of the Industrial and Vocational Training Act, the Minister may make schemes for regulating the training of apprentices or trainees in an industry, trade or occupation. Such schemes may specify, among other things, working hours, minimum wages and conditions of employment, which shall apply to apprentices and trainees. The Committee requests the Government to indicate whether such schemes have been made by the Minister pursuant to section 30 of the Industrial and Vocational Training Act.

Article 7. Light work. The Committee notes that the Government’s report contains no information regarding permissible light work for young persons aged 13-15. The Committee nonetheless observes that, according to information available at the Office, the Government of Swaziland and UNICEF estimated in 2000 that 11.3 per cent of children aged 5-14 years are economically active in some way or another. Moreover, according to section 97(2) of the Employment Act, only some restrictions (mainly on working hours and night work) apply to work by children below the age of 15 years in undertakings other than industrial undertakings, such as establishments, businesses or undertakings engaged in the sale and distribution of goods; administrative services; the newspaper production and publication; the treatment or care of children, aged or sick persons; the operation of hotels, restaurants and other places of public entertainment and other. Therefore, the Employment Act seems to allow the employment of children under the age of 15 without setting a minimum age for admission of children to work in such undertakings. The Committee recalls that Article 7, paragraph 1, of the Convention provides that national laws or regulations may permit persons from the age of 13 to engage in light work, which is: (a) not likely to be harmful to their health or development; and (b) not such as to prejudice their attendance at school, their participation in vocational orientation or training programmes approved by the competent authority or their capacity to benefit from the instruction received. The Committee also recalls that according to Article 7, paragraph 3, of the Convention, the competent authority shall prescribe the number of hours during which, and the conditions in which such employment or work may be undertaken. The Committee accordingly requests the Government to take the necessary measures to ensure that only children over 13 years of age are allowed to carry out light work in undertakings other than industrial undertakings as enumerated in section 2 of the Employment Act. It also requests the Government to ensure that work done by children over 13 in such undertakings is only light work in accordance with the conditions set out in Article 7, paragraph 1, of the Convention.

Article 8. Artistic performances. The Committee notes that, according to section 99 of the Employment Act, a child or young person may be employed in the interest of art, science or education, or any form of public entertainment or for the purposes of making cinematographic films, under and in accordance with the conditions of a licence granted by the Minister who may at any time, at his absolute discretion, revoke, vary or suspend the conditions of the licence. No licence shall be granted when, because of the nature of the entertainment, or the circumstances in which it is carried on, or the nature of the cinematographic film or the conditions under which it is made, participation in the entertainment or in the making of the film may be dangerous to the life, health or morals of the child or young person. The period of employment shall not continue after midnight and the child or young person shall be allowed a rest period of at least 14 consecutive hours. The Committee requests the Government to provide information on the procedures relating to grant of licences pursuant to section 99 of the Employment Act, as well as the number and nature of permits granted to children under 15.

Article 9, paragraph 1. Penalties. The Committee notes that, according to section 109 of the Employment Act, as amended in 1997, any person who employs a child or a young person in contravention of this Act shall be guilty of an offence and liable on conviction to a fine not exceeding 3,000 emalangeni (approximately US$480) or to a term of imprisonment not exceeding one year or both. The Committee asks the Government to provide information on the application of these penalties in practice.

Article 9, paragraph 3. Registers of employment. The Committee notes that section 151 of the Employment Act requires every employer to keep a register of all young persons and children containing names, addresses, dates of birth and other information, and, in addition, in the case of young persons employed in an industrial undertaking, the date and results of the medical examination. According to section 155(2) of the Employment Act, any employer who fails to keep any register or record shall be guilty of an offence. It also notes that section 26 of the Industrial and Vocational Training Act requires every employer who employs an apprentice or trainee to keep such records and other particulars as may be prescribed and shall retain such records for a period of three years after the date on which the contract came to an end. The Committee takes note of this information and asks the Government to provide a model of the register in question, if such exists.

Part III of the report form. The Committee notes that, according to section 7 of the Employment Act, the Labour Commissioner shall be responsible for the application, enforcement and administration of this Act. It also notes that section 5 of the Industrial and Vocational Training Act provides for the appointment of a director and such other officers as may be necessary for the purposes of this Act. The Committee requests the Government to provide further information on the functioning of the Labour Commissioner and any other mechanisms established for the effective enforcement of the labour legislation.

Part V of the report form. Application of the Convention in practice. The Committee notes the Government’s indication that Swaziland is not yet in a position to provide statistical data on the nature, extent and trends of the work done by children and that it hopes to collect and compile the relevant statistics in the near future. It notes however that for the year 2000 the ILO estimated that 14,000 children between the ages of 10 and 14 were economically active, of whom 6,000 were girls and 8,000 were boys. This represents 12.3 per cent of children aged 10-14 who were in the labour force. Children below the minimum age are frequently employed in the agricultural sector, particularly in the eastern cotton-growing region and as domestic workers in rural areas. According to the 1997 Population and Housing Census in Swaziland, 4,521 children between the ages of 12 and 17 years were working in traditional or subsistence agriculture, while 403 worked on commercial farms. The Committee requests the Government to provide a general appreciation of the manner in which the Convention is applied in practice, including available statistical data on the employment of children and young persons, extracts from inspection services reports, information on the number and nature of contraventions reported etc, even if such data are in the early stages of compilation.