Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour. The Committee previously noted the Government’s indication that the legislative process for the adoption of the Children’s Protection and Welfare Bill was ongoing. It also noted the Government’s indication that the Action Plan for the Elimination of Child Labour had been endorsed by the Programme Advisory Committee on Child Labour (PACC), and awaited formal adoption.

The Committee notes the Government’s statement that the Children’s Protection and Welfare Bill has not yet been adopted. The Committee also notes the information in the final technical progress report for the ILO–IPEC project entitled “Programme Towards the Elimination of the worst forms of child labour (TECL)” of June 2008 that, following the endorsement of the PACC in June 2008, the Action Plan for the Elimination of Child Labour was subsequently approved by the labour advisory council (NACOLA), and has been submitted to Cabinet for approval. Observing that the Government has referred to the Children’s Protection and Welfare Bill since 2005, the Committee urges the Government to take the necessary measures to ensure the adoption of this legislation without delay and to ensure the adoption of the Action Plan for the Elimination of Child Labour by Cabinet, in addition to the implementation of this Action Plan, in the near future. The Committee requests the Government to provide a copy of the Children’s Protection and Welfare Bill and the Action Plan for the Elimination of Child Labour, along with its next report.

Article 2(1). Scope of application. Self-employment and domestic work. The Committee previously requested the Government to take the necessary measures to ensure that children engaged in types of work outside of an employment relationship benefited from the protection of the Convention. The Committee subsequently noted the Government’s indication that the draft revision of the Labour Code contained a provision for the protection of children in the domestic sector as well as self-employed workers. The Government indicated that this proposed provision stated that, for the purposes of sections 124–129 of the Labour Code of 1992 (related to the minimum age for admission to work, hazardous work, light work and related issues), “[a] person is deemed to have employed a child or young person if they employ a child or young person to work or require or permit a child or young person to work in any workplace or establishment under their control, including work as a domestic worker, or for any business that they conduct, irrespective of whether the child or young person is working in terms of a contract of employment or otherwise”. The Committee expressed the hope that the draft revision of the Labour Code would soon be adopted.

The Committee notes the Government’s indication that the draft revision of the Labour Code has not been adopted by Parliament. The Committee also notes the Government’s statement that efforts are being made towards its adoption, though observes that the Government has been referring to the impending adoption of the draft revision to the Labour Code since 2006. Therefore, the Committee urges the Government to take the necessary measures to ensure that the draft revision of the Labour Code is adopted in the near future, so that self‑employed children and children engaged in domestic work benefit from the protection of the Convention. It requests the Government to provide information on progress made in this regard and to provide a copy of this legislation, once adopted.

Article 2(3). Age of completion of compulsory schooling. The Committee previously noted that primary education is not compulsory and that many children, in particular herd boys, children living in poverty and children in remote rural communities, do not have adequate access to education. The Committee expressed the view that it is desirable to ensure compulsory education up to the minimum age for employment and noted the Government’s indication that a Bill introducing free and compulsory primary education had been prepared and was awaiting clearance from the Attorney-General’s Office.

The Committee notes the Government’s statement that the Bill introducing free and compulsory primary education has yet to be adopted. The Committee notes the information, available on the Government’s website (www.lesotho.gov.ls), that, as of October 2009, the Education Bill, which would make primary school free and compulsory (including sanctions for parents if they did not send their children to school) was under discussion in Parliament. The Committee also notes that the parliamentary committee assigned to assess the Education Bill endorsed the Bill’s adoption in its presentation on its findings to the National Assembly in May 2009.

The Committee notes the information from UNESCO’s 2010 report entitled Education for All: Global Monitoring Report that, as of 2007, the net intake rate in primary education was 49 per cent, and the net enrolment ratio was 72 per cent. This report indicates that there are approximately 101,000 out-of-school children, between the ages of 6–12. The Committee also notes the information in the Government’s report that the current age at which a primary school leaving certificate can be obtained is 13 years, two years below the current minimum age for admission to work. In this regard, the Committee draws the Government’s attention to the importance of linking the age of admission to employment to the age limit for compulsory education; if compulsory schooling comes to an end before young persons are legally entitled to work, there may be a period of enforced idleness (see ILO: Minimum age, General Survey of the reports relating to Convention No. 138 and Recommendation No. 146 concerning minimum age, and Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 4(B)), ILC, 67th Session, Geneva, 1981, paragraph 140). Recalling that compulsory education is one of the most effective means to combat child labour, the Committee requests the Government to take the necessary measures to ensure the adoption of the Education Bill and to provide a copy of this legislation, once adopted. In addition, the Committee expresses the firm hope that the Government will give due consideration to the Committee’s comments concerning the desirability of ensuring compulsory education up to the minimum age of employment of 15 years.

Article 3(2). Determination of hazardous work. The Committee previously noted that, while section 125(1) of the Labour Code provides that the Minister of Labour or the Labour Commissioner may, by written notice, determine the types of work injurious to the health and morals of children and young persons, there appeared to be no determination made in this respect. However, the Committee noted the Government’s indication that the draft revision of the Labour Code contained a proposed section 129A containing a list of types of hazardous work prohibited to young persons. It requested a copy of this list, and expressed the hope that it would soon be adopted.

The Committee notes the extracts of the draft revision of the Labour Code, submitted with the Government’s report under the Worst Forms of Child Labour Convention, 1999 (No. 182), including the proposed section 129A. This proposed section is entitled “worst forms of child labour for children and young persons”, and prohibits requiring or permitting a child or young person to engage in exploitative work, and prohibits the worst forms of child labour, as defined in Article 3 of Convention No. 182, including hazardous work.

The Committee observes that, while this proposed provision prohibits hazardous work, it does not contain a list determining types of hazardous work activities, as previously indicated by the Government. Therefore, the Committee invites the Government to consider Paragraph 10(1) of the Minimum Age Recommendation, 1973 (No. 146), which provides that in determining the types of hazardous employment or work, full account should be taken of relevant international labour standards, such as those concerning dangerous substances, agents or processes, the lifting of heavy weights and underground work. The Committee accordingly urges the Government to take the necessary measures to ensure the elaboration and adoption of a list of hazardous types of work prohibited for persons under 18 in the very near future, in accordance with Article 3(2) of the Convention. It requests the Government to provide information on the consultations held with organizations of employers and workers concerned on this subject.

Article 6. Minimum age for admission to apprenticeship. The Committee previously noted the Government’s indication that, during the revision of the Labour Code, due consideration would be given to bringing the Labour Code in to line with the requirements of Article 6 of the Convention. The Committee notes the information in the Government’s report that there is currently no regularized system of vocational and technical education and that no consultations have been held on this matter. The Government also indicates that, in practice, the minimum age for admission to vocational school is 13 years (following graduation from primary school), but that there is no minimum age for admission to apprenticeships. The Committee reminds the Government that pursuant to Article 6 of the Convention, the minimum age for admission to work in undertakings in the context of vocational training or an apprenticeship programme is 14 years. It therefore urges the Government to take the necessary measures, within the context of the draft revision of the Labour Code, to ensure that no child under 14 years of age is permitted to undertake an apprenticeship in an enterprise, in conformity with Article 6 of the Convention.

Article 7. Light work. The Committee previously noted 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 also noted the information contained in the 2004 Lesotho Child Labour Survey that 38.6 per cent of children, regardless of age, worked between 22 and 28 hours per week. The Committee requested the Government to indicate the measures taken to determine light work activities, and noted the Government’s indication that due consideration would be given to Article 7 during the revision of the Labour Code.

The Committee notes the Government’s statement that the draft revision of the Labour Code includes a provision which defines light work as work which is not likely to be harmful to the health or development of the child and does not affect the child’s attendance in, or the child’s capacity to benefit from, school (proposed section 124(6)). The Government does not indicate if this amendment will apply concurrently with section 124(2) of the current Labour Code, thereby permitting such light work only in technical schools and similar institutions. In the case that the draft revision of the Labour Code intends to permit light work outside of educational institutions, the Committee reminds the Government that, pursuant to Article 7(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 therefore requests the Government to indicate if the proposed section 124(6) in the draft revision of the Labour Code permits the performance of light work outside of technical schools and similar institutions. If so, the Committee requests the Government to provide information on any measures taken or envisaged to determine types of light work activities, in conformity with Article 7(3) of the Convention.

Article 8. Artistic performances. The Committee previously noted the Government’s indication that, while there is no system of permits for children engaged in artistic activities, consideration would be given to this matter during the process of amending the Labour Code. Noting an absence of information on this point in the Government’s report, the Committee once again expresses the hope that, in the process of amending the Labour Code, the Government will take the necessary measures to establish a system of individual permits for children under the age of 15 years who participate in artistic performances. It requests the Government to provide information on any developments made in this regard.

Parts III and V of the report form. Labour inspectorate and application of the Convention in practice. The Committee previously noted that, according to the 2004 Lesotho Child Labour Survey, 23 per cent of the children in Lesotho are child labourers. The Survey also indicated that children mainly work in agricultural activities followed by those who work as domestic workers. The Committee also noted the Government’s indication that the office of the labour commissioner carries out inspections in all commercial enterprises but not in the informal economy and private residences, which is where most child labour occurs. It requested the Government to take measures to improve labour inspection in these sectors, and to provide information on the practical application of the Convention.

The Committee notes an absence of information on these points in the Government’s report. However, the Committee notes the comments of the Commissioner of Labour of 2 March 2008, available on the Government’s website (www.lesotho.go.ls) indicating that child labour continues to be a problem in Lesotho particularly with under-age domestic workers and herders. The Commissioner of Labour attributed the problem to poverty in Lesotho and the HIV/AIDS pandemic, and stated that the lack of supportive laws to redress the current status exacerbates the problem, and hinders her Ministry’s capacity to intervene. The Committee must express its serious concern at the large number of working children under the minimum age in Lesotho, and urges the Government to redouble its efforts to address this problem, within the framework of the Action Plan for the Elimination of Child Labour. In this regard, the Committee encourages the Government to take the necessary measures to ensure the adoption of appropriate legislation, to strengthen the labour inspection system (particularly in the informal economy), and to continue its collaboration with ILO–IPEC. It further requests the Government to provide information on the application of the Convention in practice, including statistical data on the employment of children and young persons, extracts of inspection reports as well as the number and nature of violations detected and penalties imposed.

The Committee encourages the Government to take into consideration, during the review of the relevant legislation, the Committee’s comments on discrepancies between national legislation and the Convention. The Committee asks the Government to provide any information on progress made in this regard and invites it to consider seeking technical assistance from the ILO.