Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Minimum Age Convention, 1973 (No. 138) - Democratic Republic of the Congo (Ratification: 2001)

The Committee notes the Government’s first report.

Article 2, paragraph 1, of the Convention. 1. Scope of application. (i) Self-employment. The Committee notes that, under the terms of section 1, paragraph 1, of Act No. 015/2002 of 16 October 2002 promulgating the Labour Code (henceforth to be referred to as the Labour Code), the Code applies to all workers and employers. Section 7(a) of the Labour Code defines the term worker as "any physical person old enough to enter into a contract who has undertaken to place his or her occupational activity, in return for remuneration, under the direction and authority of a physical or moral, public or private, person, bound by an employment contract". Section 7(b) of the Code defines the term "employer" as "any physical or moral person, public or private, who employs the services of one or more workers by virtue of an employment contract". The Committee notes that, by virtue of these provisions, the Labour Code only applies to a labour relationship. Furthermore, the Committee notes that, by virtue of section 133, paragraph 1, of the Labour Code, children may not be employed in an enterprise, even as apprentices, prior to the age of 15, unless an express exemption is granted by the labour inspector and the parental authority or guardian.

The Committee recalls that the Convention is applicable to all branches of economic activity and that it covers all types of employment and labour, whether they be carried out on the basis of an employment relationship or not and whether the worker concerned is remunerated or not. It also recalls that, by virtue of Article 2, paragraph 1, of the Convention, no one under the minimum age of 15 years shall be admitted to employment or work in any occupation, subject to the provisions of Articles 4 to 8 of the present Convention. The Committee therefore requests the Government to provide information on the manner in which those children not bound by an employment relationship, such as those who are self-employed, or who do not work in an enterprise, enjoy the protection provided for in the Convention.

(ii) Seafarers. The Committee notes the information provided by the Government, according to which, in the case of the maritime sector, Ordinance No. 66-98 of 14 March 1996 promulgating the relevant Code states, in section 216, that no one may enter into a maritime contractual commitment unless he has reached the age of 16, in the case of port work and 18 in the case of work carried out in the engine room. The Committee requests the Government to provide a copy of Ordinance No. 66-98 of 14 March 1996.

Article 2, paragraph 3. Age of completion of compulsory schooling. The Committee notes that, in its initial report transmitted to the Committee on the Rights of the Child in August 2000 (CRC/C/3/Add.57, paragraphs 149, 156 and 157), the Government indicated that the right to education is guaranteed by the transitional Constitution and Framework Act No. 86/005 (national education) of 29 September 1986 (henceforth Law No. 86/005). Section 115 of Act No. 86/005 makes schooling compulsory for boys and girls until they have completed their 15th year. The States General of National Education provide for primary education to be free of charge. The Government, however, indicated that this Law has not entered into force, for lack of implementing measures. Moreover, the Government also indicated that, as a consequence of the worsening economic crisis, children, especially boys, drop out of school from the age of 12 or 13 years onwards to make a living by their wits. In its concluding observations in July 2001 (CRC/C/15/Add.153, paragraphs 60 and 61), the Committee on the Rights of the Child expressed its concern at the high number of children who never attend school or who drop out early from their formal education. The Committee is further concerned that Act No. 86/005 of 29 September 1986 on national education has not yet entered into force, with a negative impact on children’s access to education. The Committee is concerned that school infrastructure and equipment are very inadequate. The Committee urged the Government to adopt and implement legislation establishing a minimum age for the completion of compulsory education and providing for genuinely free primary and, as far as possible, secondary education, with emphasis on assisting children from the most disadvantaged backgrounds. The Committee also recommended that the Government implement measures to increase enrolment of children in school and reduce the drop-out rate.

The Committee considers that compulsory schooling is one of the most effective means of combating child labour. Having taken account of the information mentioned above, the Committee requests the Government to take the necessary measures in order to ensure that Act No. 86/005 enters into force as soon as possible. Furthermore, in order to prevent child labour from occurring, the Committee requests the Government to transmit information on the measures taken or envisaged to increase school attendance and to reduce school drop-out rates. It also requests the Government to indicate the manner in which compulsory schooling is effectively followed up in practice and to provide information concerning rates of school enrolment and attendance.

Article 2, paragraphs 4 and 5. Specification of the minimum age of admission to employment or work at 14 years. At the time of the ratification of the Convention, the Democratic Republic of the Congo specified that the minimum age of admission to employment or work was 14 years, in accordance with Article 2, paragraph 4, of the Convention. The Committee requests the Government to indicate whether consultations with employers’ and workers’ organizations have been held with a view to setting the minimum age of admission to employment or work at 14 years and, if need be, to transmit information in this regard. It also requests the Government to provide information on the reasons for its decision to specify a minimum age of 14 years, in accordance with Article 2, paragraph 5, of the Convention.

Article 3, paragraph 1. Minimum age of admission to hazardous work. The Committee notes the information provided by the Government, according to which Ministerial Order No. 68/13 of 17 May 1968, establishing the working conditions of women and children (henceforth Order No. 68/13) remains in force pending the completion of new measures of application of the Labour Code of 2002. Under the terms of section 1 of Order No. 68/13, all employers are prohibited from employing children in work exceeding their physical capacities, work which exposes them to high occupational risks, or which, by its nature and the conditions under which it is carried out, is likely to harm their morals. The Committee notes that Order No. 68/13 does not contain any definition of the term "child". It notes, however, that section 219 of the Family Code defines the term "minor" as an individual of either sex who is not yet 18 years old. The Committee understands that the term "child" used in article 1 of Order No. 68/13 applies to children under 18 years of age. It would be grateful if the Government would provide a precise definition of this term.

As to the new implementing measures of the Labour code of 2002 that the Government intends to adopt, the Committee recalls that, under the terms of Article 3, paragraph 1, of the Convention, the minimum age of admission to hazardous work, that is to say to any type of employment or work which, by its nature or the circumstances in which it is carried out is likely to jeopardize the health, safety or morals of young persons, shall not be less than 18 years. The Committee requests the Government to take into consideration the provisions of Article 3, paragraph 1, when the measures of application of the Labour Code of 2002 are being formulated.

Article 3, paragraph 2. Determination of types of hazardous work. The Committee notes that section 32 of Order No. 68/13 includes a list of hazardous and unhealthy work prohibited to children under the age of 18. It also notes that paragraph 13 of section 32 prohibits in a general manner any work prohibited by a labour inspector due to its hazardous or unhealthy nature. Furthermore, section 28 of Order No. 68/13 prohibits the use of children under the age of 18 in the regular transportation of loads. Under the terms of section 31, children of both sexes under the age of 18 may not be employed in the transportation of loads on hand-trucks or other similar vehicles. Furthermore, section 35 provides that the employment of children aged under 18 years in bars and other public places where alcoholic drinks are consumed is prohibited. The Committee notes that this Order was adopted under the Labour Code of 1967. In so far as a new Labour Code was adopted in 2002, the Committee refers to the provisions of Paragraph 10(2) of Minimum Age Recommendation, 1973 (No. 146), which requests the Government to re-examine periodically and revise the list of the types of employment or work addressed by Article 3 of the Convention, as necessary, particularly in the light of advancing scientific and technological knowledge. The Committee requests the Government to indicate whether the labour inspector has prohibited certain types of work because of their hazardous or unhealthy nature, as provided for in paragraph 13 of section 32 of Order No. 68/13.

Article 3, paragraph 3. Admission to hazardous work from the age of 16 years. The Committee notes that section 37 of Order No. 68/13 states that the labour inspector may grant temporary exemptions to the provisions of section 32 (hazardous and unhealthy work) for children over the age of 16 years and under 18 years when urgent vocational training needs require it, upon request by the employer and when authorized by the labour inspector for that particular region. These exemptions are not authorized for young female workers. The Committee also notes that, according to section 25 of Order 68/13, children over 16 years and under 18 years may not carry out more than eight hours of effective work per day. When working hours exceed four hours a day, this period should be interrupted by one or more breaks, the total duration of which should be no shorter than an hour. Furthermore, the Committee notes that, under the terms of section 137 of the Labour Code, the labour inspector may request that children be examined by a doctor in order to check whether the work in which they have been engaged exceeds their physical capabilities.

The Committee notes that the condition contained in Article 3, paragraph 3, of the Convention to the effect that the health, safety and morals of young persons aged between 16 and 18 years authorized to carry out hazardous work shall be protected is met by the provisions mentioned above. It recalls, however, that Article 3, paragraph 3, of the Convention, also requires that young persons aged between 16 and 18 years shall receive specific instruction or vocational training in the relevant branch of activity. The Committee thus requests the Government to provide information on the measures taken or envisage in order to ensure that young people aged between 16 and 18 years who are authorized to carry out hazardous work shall receive specific instruction or vocational training in the relevant branch of activity.

Article 6. Apprenticeship and vocational training. The Committee notes that, according to section 133 of the Labour Code, children may not be employed in an enterprise, even as apprentices, prior to the age of 15, unless an express exemption is granted by the labour inspector and the parental authority or guardian. Section 24, paragraph 2, of the Code provides that the master is obliged to treat the apprentice with consideration and respect throughout the period of the apprenticeship and to monitor his health and safety while taking account of the circumstances and nature of the work. Under the terms of section 26, paragraph 2, of the Code, the apprentice must carry out the work entrusted to him to the best of his ability. Moreover, according to section 33 of the Code, the labour inspector is responsible for overseeing the execution of the apprenticeship contract. The Committee requests the Government to provide information on the rules governing apprenticeship in the Democratic Republic of the Congo, especially with regard to the working conditions of apprentices in practice and consultations with the employers’ and workers’ organizations concerned.

Article 7. Light work. The Committee notes that section 24 of Order No. 68/13 of 17 May 1968 provides that children aged between 14 and 16 years may be employed in light, healthy work, on the condition that such work does not exceed four hours a day, with regard both to school days and holidays. Such work shall not contravene the requirements in force with regard to schooling. It also notes that section 9 of Departmental Order No. 28/75 of 30 October 1975 includes a list of light and healthy work authorized for persons between the ages of 14 and 16 years. The Committee notes that, according to the Government, Departmental Order No. 28/75 will be revised very soon. It thus requests the Government to forward to the Office a copy of the Order once it has been amended.

Article 8. Artistic performances. In its report, the Government indicates that it has not invoked this provision of the Convention. The Committee recalls that Article 8 of the Convention provides for the possibility, by way of an exception to the minimum age of admission to employment and occupation, and following consultations with the employers’ and workers’ organizations concerned, of granting individual permits to allow participation in activities such as artistic performances. Permits so granted shall limit the number of hours during which and prescribe the conditions in which employment or work is allowed.

Article 1 and Part V of the report form. National policy and application in practice of the Convention. The Committee notes that, according to the ILO’s statistical data, around 1,895,000 children aged between 10 and 14 years were economically active in the year 2000. Of this number, 1,003,000 were boys and 892,000 were girls. Furthermore, the Committee notes that, in its concluding observations in July 2001 (CRC/C/15/Add.153, paragraph 66), the Committee on the Rights of the Child joined the State party in expressing concern at the prevalence of child labour, especially in informal sectors which frequently fall outside of the protections afforded by domestic legislation. The Committee recommended that the State party make every effort to end child labour, including through the dissemination of children's rights to employers, parents, the public in general and to children themselves. The Committee recommended, in particular, that the State party implement measures to enforce domestic legal protections in both the formal and informal work sectors.

Furthermore, the Committee notes that under section 187, paragraph 1, of the Labour Code, the labour inspectorate is responsible for ensuring the application of legal provisions governing working conditions and the protection of workers whilst carrying out their work, in particular with regard to the provisions governing child labour. The Committee notes however that, according to the information available to the ILO, the labour inspection service does not operate throughout the entire country. It also notes the information forwarded by the Government in its initial report to the Committee on the Rights of the Child in August 2000 (CRC/C/3/Add.57, paragraph 196), according to which, given the current disastrous economic situation, where employment in the informal economic sector is the only answer for the majority of the population, a number of parents tolerate or even send their children to do work which the latter are forbidden to perform by law.

The Committee is concerned by the situation of young children in the Democratic Republic of the Congo who are forced to work out of personal necessity. In this regard, it notes that, according to the statistical data mentioned above, the implementation of regulations governing child labour appears to present certain difficulties and that child labour is a problem in practice. The Committee requests the Government to increase its efforts to gradually improve the situation, in particular through the adoption of a national policy ensuring the effective abolition of child labour. The Committee asks the Government to communicate information on measures taken or envisaged to ensure the effective functioning of the labour inspection service. The Committee also requests the Government to provide specific information on the way in which the Convention is applied in practice, including, for example, statistical data on the employment of children and young persons, extracts from inspection service reports and information on the number and nature of infringements.