Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Minimum Age Convention, 1973 (No. 138) - Burkina Faso (Ratification: 1999)

The Committee notes the information provided by the Government in its first and second reports. It notes that the current review of the Labour Code is designed to bring its provisions into conformity with those of the Convention. It also notes that Order No. 539/ITLS/HV of 29 July 1954 respecting child labour has to be revised to take into account the requirements of the Convention. The Committee requests the Government to provide information on the progress made in the revision of the Labour Code and in bringing the other legislative texts into line with the provisions of the Convention. It requests the Government to provide additional information on the following points.

Article 1 of the Convention. National policy. The Committee takes note with interest of the signature of a Memorandum of Understanding (MOU) with IPEC in 1999. It notes that a national plan of action on child labour and a project to contribute to the abolition of child labour have been prepared in the country where, according to the estimates of the International Labour Office, 51 per cent of children aged between 10 and 14 are engaged in an economic activity (activity report of the IPEC National Programme in Burkina Faso, No. 4, covering the period up to August 2001). The Committee invites the Government to provide detailed information on the development of policies and methods in relation to minimum age.

Article 2, paragraph 1. 1. Minimum age. While noting the information provided by the Government in its reports concerning the review that is being undertaken of the Labour Code to take into account the requirements of the Convention, the Committee notes that the minimum age for admission to employment or work specified in the declaration appended to the Government’s ratification is 15 years, whereas sections 15 and 87 of the Labour Code refer to a minimum age of 14 years. It requests the Government to indicate the measures taken to raise to 15 years the minimum age for admission to employment set out in the legislation and to amend the other applicable texts, including Order No. 539/ITLS/HV of 29 July 1954 respecting child labour and Order No. 545/IGTLS/HV of 2 August 1954 derogating from the minimum age for admission to employment.

2. Scope of application. The Committee notes that the Labour Code appears to exclude from its scope work performed outside an employment relationship (section 1). However, according to the activity report of the IPEC National Programme in Burkina Faso in 2001, the majority of child workers are in agriculture and animal husbandry, and the most exposed groups work as apprentices in the informal sector in gold washing and, especially in the case of girls, as domestic workers, sales girls and apprentices. The Committee requests the Government to indicate the measures adopted or envisaged to extend the application of the Convention to work performed outside an employment relationship or in the informal sector.

Article 2, paragraph 3. Age of completion of compulsory schooling. The Committee notes that, in accordance with section 2 of Act No. 13/96/ADP of 9 May 1996 issuing the Education Guidance Act, compulsory schooling covers the period from 6 to 16 years. This provision adds that no child shall be excluded from the educational system until she or he has reached the age of 16, where the infrastructure, equipment, human resources and school regulations in force so permit. The Committee notes that in its report to the United Nations Committee on the Rights of the Child, the Government indicates that 49 per cent of the population is under 15 years of age and that it has set itself the objective of raising the school enrolment rate for girls from 50 to 60 per cent (CRC/C/65/Add.18, paragraphs 7 and 9). The Committee requests the Government to provide information on developments in the school enrolment rate in the country.

Article 3. Hazardous work. The Committee notes that the provisions of Order No. 539/ITLS/HV of 29 July 1954 respecting child labour are due to be revised. It requests the Government to provide a copy of this text when it has been revised. In the meantime, it notes that section 1 of the Order provides that, in establishments of whatsoever nature, agricultural, commercial or industrial, public or private, lay or religious, even where these establishments are by nature devoted to vocational teaching or welfare, including family enterprises or at the residences of private individuals, it is prohibited to employ children of either sex under the age of 18 years in work exceeding their strength, likely to be hazardous or which, by its nature or the conditions in which it is performed, is likely to be prejudicial to their morals. However, the Committee notes that certain provisions of the Order are not in conformity with the Convention; sections 19 and 21 (hazardous tools); sections 23-26 (hazardous work prohibited for persons under 16 years); and schedule B (establishments in which the employment of children under 18 years of age is authorized under certain conditions). The Committee also notes, with regard to underground work, that in accordance with sections 15 and 16 of the Order, as from 14 years of age, children may carry, drag or push loads the weight of which is determined as a function of the age and sex of the child, and that male children of at least 16 years of age can be employed in underground and opencast mines and quarries on the lightest work, such as the sorting and unloading of minerals, moving and tipping trucks within the limits of determined weights, and supervising or operating ventilation outlets. The Committee also notes that, under section 17 of the Order, children aged between 16 and 18 years may be engaged in actual mining work as assistants or apprentices. It notes that the legislation does not contain measures, in accordance with Article 3, paragraph 3, of the Convention to protect their health, safety and morals or to ensure that they have received adequate specific instruction or vocational training in the relevant branch of activity.

The Committee requests the Government to take the necessary measures to comply with the prohibition of hazardous types of employment or work for persons under 18 years of age (Article 3, paragraph 1), or the authorization of such types of work or employment from the age of 16 years, in so far as the necessary requirements are respected (Article 3, paragraph 3), particularly with regard to the employment of male children under 16 years of age in underground galleries, underground and opencast mines and quarries, as well as work by persons under 18 years of age as fully fledged miners.

Finally, the Committee notes that the provisions of the Order were adopted nearly 50 years ago. It draws the Government’s attention to Paragraph 10(2) of Recommendation No. 146, which calls upon governments to re-examine periodically and revise as necessary the list of the types of employment or work covered by Article 3 of the Convention, particularly in the light of advancing scientific and technological knowledge.

The Committee also notes section 87 of the Labour Code which provides that a decree issued by the Council of Ministers, after consultation with the Advisory Labour Commission, shall determine the nature of the work and the categories of enterprises prohibited for young persons and specify the age up to which this prohibition shall apply. It requests the Government to indicate whether such decrees have been adopted and, if so, to provide copies. Finally, the Committee requests the Government to provide information on the consultation of the organizations of employers and workers concerned in the determination in national legislation or by the competent authority of 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.

Article 7. Light work. The Committee notes that, under section 1 of Order No. 545/IGTLS/HV of 2 August 1954 derogating from the age for admission to employment, an exemption from the minimum age for admission to employment is established for children aged 12 and above for domestic work, light work of a seasonal nature, such as gathering, picking up and sorting produce in farms and tending for animals. The Committee reminds the Government that Article 7, paragraph 1, of the Convention only authorizes light work for persons from 13 to 15 years of age. It therefore requests the Government to bring its legislation into conformity with this provision of the Convention by raising the minimum age for admission to light work to 13 years. The Committee notes that section 6 of this Order empowers the inspector of labour and labour legislation to withdraw the employment permit accorded under the present Order in the case of any establishment in which it is proven that children under 14 years employed in the establishment are assigned to work that is not commensurate with their physical strength or is harmful to their health, endangers their safety or may jeopardize their morals. The Committee requests the Government to indicate the criteria used by inspectors to assess the extent to which the work performed is proportional, prejudicial or harmful with a view to ensuring that it is not likely to jeopardize the health or development of persons aged between 13 and 15 years.

Article 7, paragraph 2. The Committee notes that under section 2 of Order No. 545/IGTLS/HV of 2 August 1954, children under 14 years of age attending a public or private educational establishment may not be employed during school term periods. The Committee deduces that children over 14 years of age may be employed during such periods. However, it reminds the Government that the Convention only allows such an exemption for persons of at least 15 years of age who have not yet completed their compulsory schooling. The Committee requests the Government to take the necessary measures so that the national legislation guarantees that persons under 15 years, and no longer 14, who have not yet completed their compulsory schooling enjoy conditions of work that are not likely to be harmful to their health or development and are 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.

Article 8. Artistic performances. The Committee notes that, according to the Government’s reports, no recourse has been had to the provisions of this Article of the Convention. However, it notes that section 26 of Order No. 539/ITLS/HV of 29 July 1954 respecting child labour authorizes the employment of children under 16 years of age in public performances given in theatres, ballrooms, cinemas, cafés or circuses, involving hazardous feats of strength or contortion. The Committee reminds the Government that, in accordance with this provision of the Convention, the exception allowed is only authorized in individual cases and must be covered by rules concerning the number of hours and conditions under which it is carried out. The Committee requests the Government to provide information on these public performances with an indication, in addition to the rules concerning the conditions for granting permits in individual cases and the duration of such activities, the manner in which health protection is taken into account.

Article 9, paragraph 1. The Committee notes the Government’s indication in its reports that the review of the Labour Code will take into account the requirements set out in this Article. It requests the Government to provide information on the action taken, including the appropriate penalties, with a view to ensuring the effective enforcement of the provisions of the Convention.

The Committee requests the Government to keep it informed of progress made in enacting or amending the legislation. In this regard, it reminds the Government that it may avail itself of ILO technical assistance to bring its legislation into conformity with the Convention.