Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Minimum Age Convention, 1973 (No. 138) - Namibia (Ratification: 2000)

The Committee previously noted the adoption of Labour Act No. 15 of 2004. The Committee notes that on 31 December 2007, the Labour Act was amended and Labour Act No. 11 of 2007 (Labour Act) was promulgated.

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour. The Committee notes the copy of the Action Programme to Eliminate Child Labour in Namibia 2008–12 (APEC 2008–12) submitted with the Government’s report. The Committee notes that the APEC 2008–12 consists of more than 170 specific action steps, grouped into the following sections: (i) responding to cross-cutting issues linked to child labour; (ii) addressing specific types of child labour; (iii) focusing on the consequences of child labour; (iv) intervening in situations of heightened risk; and (v) ensuring the implementation of the APEC 2008–12. The Committee also notes the statement in the APEC 2008–12 that the entire programme is underpinned by a set of principles that include putting the child’s best interest first at all times, prioritizing prevention, working with stakeholders and across sectors, and remaining focused and realistic in terms of available resources. Furthermore, the Committee notes the information in the ILO–IPEC technical progress report on the project “Towards the elimination of the worst forms of child labour (TECL), Phase II: Supporting and monitoring the implementation of national plans of action in the three core countries in southern Africa”, issued on 31 August 2009, that the TECL II commenced in Namibia in June 2009, and is expected to continue until March 2012. The Committee requests the Government to continue to provide information on the implementation of the APEC 2008–12, and the implementation of the ILO–IPEC TECL II. It requests the Government to provide information on the concrete measures taken within the framework of these two projects, and the results achieved in terms of the effective reduction and elimination of child labour.

Article 2, paragraph 1. Scope of application. The Committee previously noted the information in the Government’s report that, by virtue of section 3(2) of the Labour Act, a person must not employ a child under the age of 14 years. It also noted that, by virtue of section 2(1) and (2) of the Labour Act, it applies to all “employers” and “employees”. The Committee therefore observed that the Labour Act does not apply to children who are self-employed, nor to children who do not receive remuneration for their work. The Committee recalled that the Convention applies to all kinds of work or employment regardless of the existence of a contractual relationship or remuneration and requested the Government to provide information on the measures taken to ensure the application of the Convention to children or young persons who, independently from the existence of a contract, are self-employed, as well as to children who do not receive remuneration for their work.

The Committee notes the Government’s statement that labour inspections are carried out in all areas where work is performed, regardless of whether an employment contract exists. The Committee also notes the Government’s statement that labour inspections are carried out in both the formal and informal sectors, and notes the information in the APEC 2008–12 that this programme includes measures to address child labour in both the formal and informal sectors. The Committee notes the information in the Namibia Child Activities Survey (NCAS) of 2005, issued by the Ministry of Labour and Social Work (MoLSW) in December 2008, that approximately 31 per cent of persons between the ages of 6 and 17 were working on their own account or self employed (page 71). The NCAS of 2005 also indicates that 94.5 per cent of all children engaged in economic activity did so without remuneration. The Committee requests the Government to continue to provide information on the activities of the labour inspectorate, and measures taken within the framework of the APEC 2008–12, to ensure that self-employed children and children working in the informal sector are afforded the protection established in the Convention.

Article 3, paragraph 3. Admission to hazardous work as from 16 years of age. The Committee previously noted that the Labour Act states that children over the age of 14, but under the age of 16 years, are prohibited from performing the types of hazardous work listed in section 3(3)(d), including: (i) work underground or in a mine; (ii) construction or demolition work; (iii) manufacture of goods; (iv) work related to the generation, transformation or distribution of energy; (v) work related to installing or dismantling machinery; and (vi) any work-related activities which may place the child’s health, safety, physical or mental health or spiritual, moral or social development at risk. However, the Committee noted that, by virtue of section 3(5)(b), the Minister may make regulations to permit the employment of children between 14 and 18 in the types of hazardous work listed in section 3(3)(d). The Committee recalled that Article 3(3) of the Convention lays down that the competent authority may authorize, after consultation with the organizations of employers and workers concerned, young persons older than 16 years of age to undertake hazardous work on condition that their health, safety or morals are fully protected and that they receive adequate specific instruction or vocational training in the relevant branch of activity.

The Committee notes the Government’s statement that no regulations have been issued pursuant to section 3(5)(b) of the Labour Act and that, therefore, no types of hazardous work are allowed for persons under the age of 18. Nonetheless, recalling that Article 3(3) of the Convention permits the engagement of young persons in hazardous work only as of the age of 16, the Committee requests the Government to take the necessary steps to bring its legislation into conformity with the Convention, to ensure that under no circumstances will the performance of hazardous work be permitted to persons between the ages of 14 and 16.

Article 6. Apprenticeship. In its previous comments, the Committee noted that, under section 13 of National Vocational Training Act No. 18 of 1994, the Vocational Training Board may establish vocational standards for vocational training and apprenticeships in any designated trade. According to section 14(3)(i), those schemes will determine the qualifications including the minimum age and education standard required for the trade. The Committee requested the Government to indicate whether there were provisions setting the minimum age for entry into apprenticeship at 14 years. The Committee notes the information in the Government’s report that the minimum age of 14 years of age, specified in section 3(2) of the Labour Act, applies to persons engaged in apprenticeships.

Article 7. Light Work. In its previous comments, the Committee noted that the national legislation does not authorize light work, though observed that, according to the NCAS of 1999, quite a number of children under 14 years were economically active in some way. The Committee reminded the Government that, pursuant to Article 7 of the Convention, national laws or regulations may permit light work for children between the ages of 12 and 14.

The Committee notes the Government’s statement that, with the assistance of ILO–IPEC through the TECL II, it is envisaged that light work will be defined in the near future, in order to provide for appropriate regulations. The Committee notes that the NCAS of 2005 indicated that approximately 75 per cent of children aged 12 and 14 were engaged in some form of economic activity, and the majority of these children combined this work with school. In this regard, the Committee reminds the Government that, pursuant to Article 7 of the Convention, national laws or regulations may permit light work for children which is: “(a) not likely to be harmful to their health and 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(3) of the Convention, the competent authority shall determine what light work is and shall prescribe the number of hours during which such employment or work may be undertaken. The Committee requests the Government to provide information on the progress made with regard to developing regulations to determine light work activities and the conditions in which such employment or work could be undertaken by young persons between the ages of 12 and 14.

Article 9. Sanctions. The Committee previously noted the information in the Government’s report that, by virtue of section 3(6) of the Labour Act of 2004, any person who is convicted of employing a child in any work prohibited under section 3 of the Labour Act, including hazardous work, is liable to a fine not exceeding 4,000 dollars (NAD) (approximately US$600) or to imprisonment for a period not exceeding 12 months, or to both. The Committee noted the Government’s indication that forthcoming amendments would increase these penalties and requested a copy of this legislation, once adopted. The Committee notes with interest that section 3(5) of the Labour Act, as amended in 2007, states that it is an offence for any person to employ, or require or permit, a child to work in any circumstances prohibited under section 3, and that a person who is convicted of this offence is liable to a fine not exceeding NAD20,000 (approximately US$2,713) or to imprisonment for a period not exceeding four years, or to both.

Part III of the report form. Labour inspection. Agricultural work. The Committee notes the information in the Government’s report that in August 2009, the MoLSW initiated investigations into the occurrence of child labour in the agricultural sector, in both commercial and communal farms. The Government indicates that eight teams (consisting of two labour inspectors, a social worker and senior policy officials) carried out investigations in nine of Namibia’s 12 administrative regions. The Committee also notes that the investigation teams issued compliance orders to employers who were found to be employing children in contravention of section 3 of the Labour Act. These compliance orders were issued pursuant to section 126 of the Labour Act, which requires employers to stop employing children within 30 days from its issuance. The Committee further notes that, pursuant to section 127(1)(d)(2) of the Labour Act, failure to comply with this compliance order is an offence punishable by the courts. The inspection teams therefore undertook follow-up inspections at the expiry of the 30-day period, to verify the compliance of the employer. In cases of non-compliance, the teams proceeded to lay criminal charges for such contraventions, and engaged the Namibian Police to ensure proper investigation and prosecution of these cases.

The Committee notes the statement in the APEC 2008–12 that there is a much greater number of children working in subsistence agriculture than commercial farming, though notes that the periodic labour inspections carried out by the MoLSW occur almost entirely in commercial agriculture (page 57). The Committee requests the Government to pursue its efforts to conduct inspections in the agricultural sector, with a particular focus on subsistence agriculture, where the majority of children.

Part V of the report form. Application of the Convention in practice. 
1. Child labour in the agricultural sector. The Committee notes that the abovementioned investigations, undertaken by the MoLSW in the agricultural sector, detected more than 111 cases of child labour. The Committee also notes that, in most of these cases, the parents of these children indicated that poverty was the main reason for allowing them to work as an additional means of income. Parents employed in farms allowed their children to work with them and, generally, these children did not attend school. This practice was condoned by farm owners. The Committee further notes that most farm owners perceive child labour as cheap labour as they remunerate them below the minimum wage for agricultural work. In addition, the Committee notes that some of the working children indicated that they were working due to insufficient finances to pay their school fees, and that some were orphans. The Government indicates that, for various reasons, governmental social grants provided to orphans and vulnerable children were not accessed by these potential beneficiaries, which led to a loss of income that might have prevented their engagement in child labour.

The Committee notes the information in the NCAS of 2005 that agricultural work was the second most common form of economic activity performed by children (after work performed in the private household). The Committee also notes that the APEC 2008–12 contains action steps to address child labour in this sector, particularly measures to address legislative and policy gaps in this area (requiring farm employers to obtain proof of age of jobseekers and to define what constitutes “normal family responsibilities on farms” in subsistence agriculture), create awareness and disseminate information on the issue of child workers in agriculture and to implement programmes to address the problem of child exploitation in this sector (pages 58–59). The Committee requests the Government to provide information on the implementation of these action steps taken within the framework of the APEC 2008–12, and their impact with regard to reducing the economic exploitation of children in the agricultural sector.

2. Production of charcoal. The Committee notes the information in the report “Children’s engagement in the production of charcoal in Namibia; A child labour-related rapid assessment study”, issued by the MoLSW, in cooperation with ILO–IPEC in 2007 (charcoal rapid assessment study), that child labour did not appear to be a major problem in this sector. In the course of this study, four confirmed cases of child labour were found, involving children aged 16 to 17, who were engaged in potentially hazardous work. Some of the employers surveyed for the charcoal rapid assessment study indicated that children of adult charcoal labourers could be engaged in the production of charcoal by accompanying and helping their parents at work. The Committee further notes the information in the charcoal rapid assessment study that there were no cases of children under the age of 14 working in charcoal production, and that only on six farms (out of a total of 26), did adult charcoal labourers indicate that they believed children were involved in charcoal production.

3. Namibia Child Activities Survey (NCAS) of 2005. The Committee previously noted that the MoLSW conducted a child activities survey and requested the Government to supply a copy of this survey, once it had been finalized. The Committee notes the detailed statistical information on the economic activities of Namibian children, provided in the NCAS of 2005. The NCAS of 2005 indicates that that 71.9 per cent of children surveyed aged 6 to 17 were found to be working, the majority of which (86.2 per cent of working children) were in rural areas (page 49). The Committee notes that most of these working children still attended school (88.4 per cent of girls and 83.7 per cent of boys). Nonetheless, 4.7 per cent of working children never attended school, and 6.7 per cent of working children had left school, though many of the children who had left school did so after reaching the minimum age of employment (only 5.4 per cent of working children aged 13 had left school).

The Committee notes that a large number of children were working below the minimum age. It notes that 49 per cent of 6 year olds surveyed, 65.8 of 8 year olds surveyed, 73.4 per cent of 10 year olds surveyed and 76.8 per cent of 12 year olds surveyed were found to be engaged in some form of economic activity. The Committee notes that the most common forms of work performed was unpaid water collection, firewood collection and preparation of food/mahangu pounding, and that most children were employed in private households. Nonetheless, the Committee notes that a significant percentage of working children below the minimum age were regular paid employees. Of the working children in their age category, the NCAS of 2005 indicated that 20 per cent of 8 year olds, 35.2 per cent of 10 year olds and 20.4 per cent of 12 year olds were regular paid employees, with fixed wages.

While appreciating the detailed statistical information, the Committee notes with concern the large number of children under the minimum age of 14 who are engaged in economic activities. The Committee requests the Government to pursue its efforts within the APEC 2008–12 to ensure that in practice, children under the minimum age of 14 do not engage in child labour. Furthermore, noting that the APEC 2008–12 includes plans to conduct several additional research projects on the nature of child labour in specific sectors, the Committee requests the Government to provide a copy of these research studies, once completed.