Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Article 1 of the Convention and Part V of the report form. National policy and practical application of the Convention. In its previous comments, the Committee noted that, while many measures were being implemented by the Government to combat child labour through the ILO–IPEC project “Support to the National Action Plan to Combat Child Labour in Malawi”, the Government was moving slowly in the final adoption of the national policy and National Action Programme (NAP), even though these had been adopted at ministerial level. The Committee also noted that the Malawi Multiple Indicator Cluster Survey of 2006 indicates that approximately 33.6 per cent of all persons between the ages of 5 and 14 (1.4 million children) are involved in economic activity in Malawi.

The Committee takes due note of the Government’s information that its National Child Labour Policy was finalized and that it has launched the NAP on Child Labour for Malawi (2010–16), in which the responsibilities of all stakeholders in the fight against child labour are well articulated. The priorities of the NAP include developing and improving the policy and legislative framework; building the capacity of the education sector; creating awareness and bridging the information gap on child labour; and building the institutional and technical capacity of service providers. Considering that the last comprehensive survey on child labour in Malawi was undertaken in 2002 and that no follow-up survey was done, it is also envisaged to conduct a national child labour survey and regularly update national child labour statistics in order to determine their trends and prevalence. Expressing its concern at the considerable number of children under 14 who are engaged in economic activity in Malawi, the Committee once again urges the Government to redouble its efforts to ensure the progressive abolition of child labour and the enforcement of the relevant legislation in the country. The Committee also requests the Government to supply information on the implementation of the NAP on Child Labour, and on the results achieved in terms of the progressive abolition of child labour. Lastly, the Committee requests the Government to provide a copy of the results of the national child labour survey when they are available.

Article 2(1). Scope of application. In its previous comments, the Committee noted that the Employment Act is applicable only where there is an employment contract or labour relationship and does not cover self-employment. The Committee therefore drew the Government’s attention to possibilities for providing self-employed children the protection of the Convention, including the elaboration of legislation specifically to ensure children’s rights or by strengthening the labour inspectorate in sectors where children are often self-employed, such as the commercial agricultural sector. Indeed, the Committee had noted that the Committee on the Rights of the Child, in its concluding observations of 27 March 2009, expressed concern that many children between 15 and 17 are engaged in work that is considered as hazardous, especially in the tobacco and tea estate sector (which continues to be a major source of child labour) (CRC/C/MWI/CO/2, paragraph 66). In this regard, the Committee had noted that the Tenancy Labour Bill, a Bill which establishes a minimum age for employment in the tobacco sector and provides for frequent inspections of tobacco estates, had been finalized technically and was awaiting Cabinet approval (prior to submission to Parliament). Nonetheless, the Government had indicated that it has a considerable backlog of legislation to deal with.

The Committee observes that, within the framework of the NAP on Child Labour in Malawi, it is envisaged to vigorously promote the Tenancy Labour Bill for enactment. In this regard, the Government indicates that the forthcoming parliamentary sitting will likely discuss the Bill and adopt it, at which point a copy of the Tenancy Labour Act will be forwarded to the Committee. The Committee once again expresses its concern that the Tenancy Labour Bill has yet to be adopted and urges the Government to take the necessary measures to ensure the adoption of the Bill at the next parliamentary sitting. It expresses the firm hope that, in adopting the Tenancy Labour Bill, the labour inspection component concerning children working in the commercial agricultural sector on their own account will be strengthened, and requests the Government to provide information on the progress made in this regard along with its next report.

Article 3(1). Minimum age for admission to hazardous work. In its previous comments, the Committee noted a discrepancy between article 23 of the Constitution, which provides for protection from dangerous work for children below the age of 16 years, and section 22(1) of the Employment Act, which, in accordance with the Convention, lays down a minimum age of 18 years for work that is likely to be harmful to their health, safety, education, morals or development, or prejudicial to their attendance in school. This issue was discussed at a tripartite meeting in 2005, where it was agreed by all social partners that there was a need to harmonize the provisions of the national laws. Subsequently, this issue was presented to the Malawi Law Commission for consideration, and the Commission recommended that the age stipulated under article 23 of the Constitution be raised to 18 years of age.

The Committee notes that the Government provides no information on that point in its report. Yet, according to the NAP on Child Labour, inconsistencies among various pieces of legislation relating to children, including the Constitution, remain an issue. Observing that the discrepancy between section 22(1) of the Employment Act and article 23 of the Constitution has been under discussion since 2005, the Committee once again urges the Government to take the necessary measures, within the framework of the NAP on Child Labour or otherwise, to ensure that the recommended amendment to article 23 of the Constitution is adopted in the very near future, in conformity with Article 3(1) of the Convention.

Article 3(2). Determination of types of hazardous work. Following its previous comments, the Committee notes the Government’s information that a List of Hazardous Work for children has been finalized and that it is currently being processed for gazetting. Observing that the Government has been referring to the List of Hazardous Work since 2006, the Committee once again urges the Government to take the necessary measures to ensure that the draft list of types of hazardous work is adopted without delay. It requests the Government to provide a copy of this list as soon as it is adopted.

Article 9(3). Keeping of registers by employers. The Committee previously noted that section 23 of the Employment Act stipulates that every employer is required to maintain a register of persons aged below 18 years employed by, or working for, him/her. However, the Committee also noted the indication of the Malawi Trade Unions Congress (MCTU) that some estates did not have registers, particularly in commercial agriculture. The Committee noted the Government’s indication that labour inspectors have demanded labour registers when inspecting any workplace and, where no such register exists, the owner is advised to purchase one which is available at the government press or any bookshop. The Government also indicated that the applicable parliamentary Act still did not have a model register, that the registers available at the government press are general and that employers use different formats. Nonetheless, the Government indicated that following discussions with the social partners, it was resolved to develop standard templates for various legislative prescriptions, including a model for a labour register. The Committee noted the Government’s information that the draft model register would be finalized before the end of the year, and that this draft will be submitted to the Tripartite Labour Advisory Council for adoption.

The Government indicates that the modern register of employment will be in conformity with Article 9(3) of the Convention and will be submitted to the Committee as soon as it is produced. In this regard, the Committee once again reminds the Government that, pursuant to Article 9(3) of the Convention, the registers kept by employers shall contain the names and ages or dates of birth, duly certified wherever possible, of persons whom they employ, or who work for them, and who are less than 18 years of age. Observing that the Government has been referring to the model register of employment since 2006, the Committee urges the Government to take the necessary measures to ensure its elaboration and adoption without delay. It once again requests the Government to supply a copy of the model register as soon as it is adopted.