Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Minimum Age Convention, 1973 (No. 138) - Lesotho (Ratification: 2001)

The Committee takes note of the Government’s first report. It also notes with interest that Lesotho ratified the Worst Forms of Child Labour Convention, 1999 (No. 182), on 14 June 2001. 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 the Government’s statement that there is no particular policy designed to ensure the abolition of child labour. It notes, however, that the Government has taken several educational initiatives and projects in collaboration with UNICEF, such as the 1995-2000 National Plan of Action (NPA) for children (articulating how the World Declaration on the Survival, Protection and Development of Children of 1990 will be implemented at the national level); the Non-formal Education Project (promoting non-formal learning opportunities); the Early Childhood Development Project (monitoring all pre-primary schooling); the Free Primary School Education Programme, which introduced free education for children commencing Grade One in January 2000. The Committee asks the Government to provide information on these various projects and the results attained, specifying how they contribute to the effective abolition of child labour.

Article 2, paragraph 1. Scope of application. (i) Self-employment. The Committee notes that, by virtue of section 2(1), the Labour Code applies to any employment in the private sector and to any employment by or under the Government, or by or under the public authority; it also applies to apprentices. The Committee notes furthermore that section 3 of the Labour Code defines "employee" as any person who works in any capacity under a contract with an employer in either an urban or a rural setting. The Committee notes that the provisions of the Labour Code appear to exclude self-employment from its application. In addition, it notes that, according to the Committee on the Rights of the Child (CRC/C/15/Add.147), children are increasingly employed as street traders and porters and there is an increasing number of children working on the streets (section D.8 (55); (59)). The Committee reminds the Government that the Convention applies to all sectors of economic activity and that it covers all forms of employment or work, whether or not there is a contractual employment and whether or not the work is remunerated. The Committee requests the Government to supply information on the measures taken or envisaged to ensure the application of the Convention to all types of work outside an employment relationship, such as self-employment.

(ii) Agricultural and domestic work. The Committee notes the Government’s indication that according to section 124(1) of the Labour Code, no "child"- defined by section 3 as a person under the age of 15 years - shall be employed in any commercial or industrial undertaking other than a private undertaking in which only members of the child’s own family are employed. The Committee also notes from the report of 20 July 1998 submitted by the Government of Lesotho to the Committee on the Rights of the Child (CRC/C/11/Add.20) that the Labour Code of 1992 is commonly seen as applying only to industrial work and that children under 15 years of age are regularly engaged in herding livestock and domestic work. The Committee asks the Government to provide information on the measures taken or envisaged to ensure the application of the Convention to all sectors of economic activity and to indicate what minimum age provisions apply to sectors other than commercial or industrial undertakings, such as agricultural and domestic work.

Article 2, paragraph 3. Age of completion of compulsory schooling. The Committee notes that according to the Committee on the Rights of the Child (CRC/C/15/Add.147), free education has been introduced in Lesotho for those commencing Grade One in January 2000. It also observes the information from UNICEF that the free primary education project has succeeded in enrolling an additional 120,000 children in primary schools since 2000. However, the Committee notes that primary education has not yet been made compulsory and that many children, in particular herd-boys, children living in poverty and children in remote rural communities continue not to have access to education. The Committee further notes that article 28(b) of the Lesotho Constitution of 1993 provides that Lesotho shall endeavour to make education available to all and shall adopt policies aimed at securing that primary education is compulsory and available to all. The Committee also notes that section 3(2) of the Education Act No. 10 of 1995 requires a parent of a child of school-going age to cause that child to receive full-time education suitable to his age, by regular attendance at school or otherwise. Nevertheless, it notes that the Education Act does not specify the minimum age for the commencement or completion of such education, nor does it define the "school-going age" of a child. The Committee considers the requirement of Article 2(3) of the Convention is fulfilled since the minimum age for employment is not less than the age of the completion of compulsory education. The Committee is nevertheless of the opinion that compulsory education is one of the most effective means of combating child labour and that it is important to emphasize the necessity of linking the age of admission to employment to the age limit for compulsory education. If the two ages do not coincide, various problems may arise. If compulsory schooling comes to an end before the young persons are legally entitled to work, there may be an enforced period of idleness (see ILO: Minimum age, General Survey of the reports relating to Convention No. 138 and Recommendation No. 146 concerning minimum age, Report of the Committee of Experts on the Application of the Conventions and Recommendations, Report III (Part 4(B)), ILC, 67th Session, Geneva, 1981, paragraph 140). The Committee therefore considers it desirable to ensure compulsory education up to the minimum age for employment, as provided under Paragraph 4 of Recommendation No. 146. It hopes, therefore, that the Government will indicate any development in this regard.

Article 3, paragraph 1. Minimum age for admission to hazardous work. The Committee notes with interest the Government’s indication that section 125(1) of the Labour Code provides that a child or young person shall not be employed on any work which is injurious to his/her health or morals, dangerous or otherwise unsuitable, or on any work which the Minister, by notification in the Gazette, or the Labour Commissioner, acting in accordance with any directions of the Minister, has declared, by notice in writing, to be a kind which is injurious to the health or morals of a child. Under the terms of section 3 of the Labour Code, a "child" is a person under the age of 15 years and a "young person" is a person who is over the age of 15 years but under the age of 18 years. The Committee also notes that section 126(1) of the Labour Code prohibits the employment of children and young persons at night in any commercial or industrial undertaking and section 127 prohibits the employment of children and young persons in mines, quarries or any opencast working, except in terms of an apprenticeship agreement approved by the Labour Commissioner.

Paragraph 2. Determination of hazardous work. The Committee notes that the national legislation does not seem to provide for a list of the types of work or employment likely to jeopardize the health or morals of a child or young person pursuant to section 125(1) of the Labour Code. The Committee reminds the Government that, by virtue of Article 3, paragraph 2, of the Convention, the types of work or employment that are likely to jeopardize the health, safety and morals of children, shall be determined by national laws or regulations or by the competent authority after consultation with the organizations of employers and workers concerned, where such exist. The Committee asks the Government to indicate whether any declaration regarding the types of work or employment that are likely to jeopardize the health, safety and morals of children has been issued by the Minister or by the Labour Commissioner, pursuant to section 125(1) of the Labour Code. If so, the Committee asks the Government to communicate the list of the types of hazardous work and to indicate whether workers’ and employers’ organizations were previously consulted for the determination of such work.

Article 4. Exclusion of limited categories of employment or work. The Committee notes the Government’s indication in its first report that, by virtue of section 124(1) of the Labour Code, the employment of a child in a private undertaking in which only members of the child’s own family, up to five in total number, are employed, is excluded from the application of the Convention. The Committee recalls that by virtue of Article 4, paragraph 1, of the Convention, the competent authority, after consultation with the organizations of employers and workers concerned, where such exist, may exclude from the application of this Convention limited categories of employment or work in respect of which special and substantial problems of applications arise. Paragraph 2 not only requires to list in a first report any categories which may have been excluded, but also to state the reasons for such exclusion. Consequently, the Committee asks the Government to indicate, in its next report, the reasons for which children working in family undertakings have been excluded from the scope of the Convention, the position of its law and practice in respect of children working in family undertakings, as well as the extent to which effect has been given or is proposed to be given to the Convention in respect of this category of work. The Committee also asks the Government to provide information on consultations held on this matter with the employers’ and workers’ organizations concerned.

Article 6. Apprenticeship and vocational training. The Committee notes that, by virtue of section 2(1), the Labour Code Order applies to apprentices. The Committee notes that the Labour Code Order does not regulate apprenticeship and vocational training, with the exception of the provisions of sections 126 and 127. By virtue of section 126(1), the Labour Commissioner may, for the purposes of apprenticeship or training in such industries or occupations which need to be carried on continuously (as the Minister may by regulation prescribe), authorize the employment during the night of young persons who have attained the age of 16 years, provided they are granted a rest period of at least 13 consecutive hours between two periods of work. According to section 127(1), no child or young person shall be employed in any mine or in any quarry or opencast working except a young male person over the age of 16 who is employed otherwise than underground in terms of an apprenticeship agreement approved by the Labour Commissioner and in respect of whom a medical officer has certified that he is fit for such work. The Committee notes that, by virtue of section 14(1) of the Lesotho Technical and Vocational Training Act of 1984, the Minister of Education may, on the advice of the Technical and Vocational Training Board, make schemes for regulating the training of persons in any trade or occupation and may also specify the minimum age and educational standards required (section 14(2)(a)), the period of training (section 14(2)(b)), the different conditions in respect of different classes of trainees and workers (section 14(3)). By virtue of section 15, the Minister of Education may also make regulations for carrying the Vocational Training Act into effect. Moreover, the Committee notes that the Technical and Vocational Act of 1984 seems to have been revised in 1993 to include apprenticeship training. It further notes that the Constitution of Lesotho provides under article 29(1)(b) that the Government shall adopt policies aimed at providing technical and vocational guidance and training programmes. The Committee therefore requests the Government to provide information on the system of vocational and technical education, enrolment figures, conditions prescribed by the relevant competent authorities and on consultations with the employers’ and workers’ organizations concerned, for any work done by children and young persons authorized as part of vocational or technical education. The Committee also requests the Government to provide information on the minimum age for apprenticeships and on the conditions governing work done by apprentices pursuant to sections 126 and 127 of the Labour Code.

Article 7. Light work. The Committee notes that section 124(2) of the Labour Code permits the employment of children between the ages of 13 and 15 for light work in technical schools and similar institutions, provided that the work has been approved by the Department of Education. It notes the Government’s statement that the activities and conditions of light work have not been specified. The Committee notes, however, that, according to the Committee on the Rights of the Child (CRC/C/15/Add.147), quite a number of children under 15 years are economically active in some way or another. The Committee reminds the Government that Article 7, paragraph 1, of the Convention provides that national laws or regulations may permit the employment or work of persons 13 to 15 years of age on light work which is: (a) not likely to be harmful to their health and development; and (b) not such 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. It also recalls that according to Article 7, paragraph 3, of the Convention, the competent authority shall determine what is light work and 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 indicate the measures taken or envisaged in respect of provisions which would determine light work activities and the conditions in which such employment or work could be undertaken by persons between 13 and 15 years of age.

Article 8. Artistic performances. The Committee notes the Government’s statement that no permits exist and no commitments have been made for such purposes as participation in artistic performances. The Committee draws the Government’s attention to the possibility under Article 8 of the Convention to establish a system of individual permits for children under the minimum age who work in activities such as artistic performances, if these are performed in practice. The Committee requests the Government to provide information on whether children under the age of 15 years participate in artistic performances in practice.

Article 9. Registers of employment. The Committee notes that, according to the Government’s information and to section 128(1) of the Labour Code, every employer in an industrial undertaking shall keep a register of all children and young persons employed and working therein and shall include in such register particulars of their ages or apparent ages, the dates of commencement and termination of employment and such other particulars as the Minister may by regulation prescribe. The employer shall produce the register for inspection whenever so required by a labour officer. However, the Committee notes that this provision of the Labour Code applies only to employers in industrial undertakings. The Committee reminds the Government that the Convention requires that the obligation of keeping such registers extends to employers in all sectors of economic activity and asks the Government to indicate the measures taken or envisaged to ensure conformity with the Convention in this respect.

Part III of the report form. The Committee notes that the Labour Code provides for a system of inspection ensured primarily by labour officers (inspectors) including the Labour Commissioner and such other officers and delegates as necessary for the purposes of the administration of the Labour Code (sections 12 and 13). Nevertheless, the Committee observes with concern the information provided by the Committee on the Rights of the Child in its Concluding Observations of 21 February 2001 (CRC/C/15/Add.147) about the large number of children working in potentially dangerous conditions and the lack of monitoring and supervision over the conditions in which they work (section D.8(55)). The Committee therefore requests the Government to provide information on the practical application of the inspections and to supply a copy of the reports of such inspections.

Part V. The Committee notes the Government’s statement that there are no statistical data on the employment of children and young persons but there is factual information that children work as herd-boys, domestic workers and food sellers. The Committee further notes that according to the Committee on the Rights of the Child (CRC/C/15/Add.147), children are also increasingly employed as street traders, porters and in textile and garment factories and there is an increasing number of children living and/or working on the streets (section D.8(55)(59)). The Committee requests the Government to continue providing information on the manner in which the Convention is applied, including, for example, statistical data on the employment of children and young persons, extracts from the reports of inspection services and information on the number and nature of violations detected involving children and young persons.