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

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

Article 1 of the Convention. National policy. The Committee had previously noted the Government’s indication that the draft Employment Act had been submitted to the Cabinet for approval. It had also noted that a draft National action programme on the elimination of child labour was elaborated. The Committee had further noted that Swaziland was one among the five countries who participated in the ILO–IPEC project entitled “Towards the elimination of the worst forms of child labour, 2004–08” (TECL). The Committee notes the Government’s statement that the Employment Bill has not yet been promulgated into law, but has been retabled in Parliament. It also notes the Government’s indication that it has finalized consultations with the stakeholders on National action programme on the elimination of child labour which is currently with the Labour Advisory Board and which will be submitted to the Cabinet for adoption. The Committee further notes that, according to the TECL Programme – Swaziland Country Plan, the aim of this programme in Swaziland was to increase the knowledge on the worst forms of child labour as well as child labour, and to assist the country with the formulation of a national child labour action plan that would lay the foundation for concerted action towards the elimination of child labour, prioritising the worst forms of child labour. The Committee hopes that the Employment Bill and the National action programme on the elimination of child labour will be adopted soon and requests the Government to supply a copy thereof, once they have been adopted.

Article 2, paragraph 1. Scope of application. 1. Self-employment. The Committee had previously observed that as per the provision of section 21(2) of the Employment Act, work performed outside the framework of a contract of employment, such as self-employment, appeared to be excluded from its scope of application. It had also noted the Government’s indication that this issue would be taken into consideration in the draft Employment Bill. The Committee notes with interest that Part III of the draft Employment Bill which deals with employment of children and young persons covers work carried on by a child under a contract of service, a contract for services or any other arrangements, as well as any business whether paid or unpaid.

2. Agricultural sector, domestic work and family undertakings. The Committee had previously noted that, pursuant to section 2 of the Employment Act, domestic employment, agricultural undertakings and family undertakings were not included in the definition of “undertaking” and therefore not covered by the minimum age provisions of section 97. The Committee had requested the Government to indicate whether other provisions of the national legislation applicable to these categories of workers prohibited the employment or work of such workers under 15 years of age. It had further noted the Government’s statement that the above concerns would be considered while drafting the Employment Bill. The Committee notes, however, that under section 2 of the draft Employment Bill, the definition of the term “undertaking” retains the above exceptions. It also notes that according to section 9(1) of the draft Employment Bill a child (under the age of 15 years) is said to be engaged in employment if he or she takes part or assists in any business, which according to section 2 is defined as any trade, enterprise, undertaking or establishment. Moreover, section 11(1)(a) of the draft Employment Bill exempts family undertaking from the minimum age provisions. Nevertheless, according to section 11(3) of the draft Employment Bill, a child employed in a family business may not work during school hours; between 6 p.m. and 7 a.m.; for more than six hours a day; for more than 33 hours a week; or for more than four hours continuously without an interval of at least one hour. The Committee further notes that under the draft Industrial Relations Act, the definition of “undertaking” covers domestic service in a household or a private house. The Committee notes the Government’s statement that the rapid assessment study conducted by UNICEF in 2000 indicated that children were found working in agriculture, domestic work, transport and as street vendors. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that children working in the agricultural sector benefit from the protection laid down in the Convention.

3. Work done by children below the age of 15 years in undertakings other than industrial undertakings. The Committee had previously observed that the provisions of section 97(2) of the Employment Act seemed to allow the employment of children under the age of 15 in undertakings, with certain restrictions on working hours and night work, but without setting a minimum age for admission of such children to work. The Committee notes that according to section 11(1) of the draft Employment Bill, a person may not employ a child (under the age of 15 years) except in a family business. It also notes that according to the draft Employment Bill the restrictions are placed on working hours and night work with regard to children employed in a family business (section 11(3)).

Article 2, paragraph 3. Age of completion of compulsory education. The Committee had previously noted that, according to article 29(6) of the new 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, as did the Committee on the Rights of the Child, in its concluding observations of October 2006 (CRC/C/SWZ/CO/1, paragraphs 59 and 60), welcomed the measures taken by the Government on education, such as the adoption in 2005 of the Universal Primary Education Plan. However, it had expressed its concern at the high rates of repetition and drop-outs, as well as the extremely low completion rates in schools. The Committee notes the Government’s statement that it is currently engaged in consultations with the relevant stakeholders to implement free education from 2010, starting with grades I and II and gradually increasing up to grade VII. It also notes the Government’s information that the primary schooling starts at the age of 6 years at grade I and is completed at grade VII at the age of 12 years. The Committee observes that the requirement under Article 2(3) of the Convention is met to the extent that the minimum age for admission to employment or work (15 years) is not below the age at which compulsory education ends (12 years). Nonetheless, the Committee considers that compulsory education is an effective means of combating child labour and that it is necessary to link the minimum age for admission to employment or work with the age limit for compulsory education. If the two ages do not coincide various problems may arise. If compulsory schooling ends before young people may work legally, there may be an enforced period of idleness (see ILO: Minimum age, General Survey of the Committee of Experts on the Application of Conventions and Recommendations (Part 4B), ILC, 67th Session, Geneva, 1981, paragraph 140). The Committee therefore considers it desirable for the school-leaving age to coincide with the minimum age for admission to employment or work, as indicated in Paragraph 4 of Recommendation No. 146, in order to avoid a period of forced inactivity and hopes that the Government will provide information on any new developments in this respect.

Article 3, paragraphs 1 and 2. Minimum age for admission to, and determination of, hazardous work. In its previous comments, the Committee had noted 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, or such other employment as the minister may prescribe. The Committee had requested 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.

The Committee notes that by virtue of section 10(1)(a)–(g) of the draft Employment Bill employing or engaging a child (under 15 years of age) and a young person (between 15 and 18 years) in the following activities are prohibited: (a) in slavery, forced labour; forced or compulsory recruitment for use in armed conflict; (b) for prostitution, pornography or for pornographic performances; (c) for illicit activities, in particular the production or trafficking of drugs; (d) work in any premises or part of any premises used for the sale or consumption of liquor; (e) any underground work; (f) any dangerous or unhealthy work; or (g) any work which by its nature or the circumstances in which it is carried out, is hazardous or otherwise likely to harm their health, safety or morals, which include those works enumerated under paragraph 3 of Recommendation No. 190.

The Committee also notes that according to subsection (2) of section 10, the minister may, after consultation with the Labour Advisory Board and by notice in the Gazette, specify particular types of work contemplated by subsection (1)(g) which are prohibited to children and young persons. The Committee requests the Government to take the necessary measures to develop a list of types of hazardous work prohibited to children and young persons, pursuant to section 10(2) of the draft Employment Bill.

Part V of the report form. Application of the Convention in practice. The Committee notes the Government’s statement that a labour force survey was conducted for the first time in Swaziland, but unfortunately did not cover child labour. It also notes the Government’s indication that the labour inspection management system is in the process of being computerized and thereafter all the data will be compiled and kept. 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, and information on the number and nature of contraventions reported. It also requests the Government to supply a copy of the data on child labour compiled and kept, if any, by the new labour inspection management system.