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

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

The Committee notes the comments made by the Swaziland Federation of Trade Unions (SFTU) in a communication dated 30 August 2011, as well as the Government’s report.

Article 1 of the Convention. National policy. The Committee had previously noted the Government’s indication that the draft Employment Bill had been submitted to the Cabinet for approval. It had also noted that a draft National Action Programme on the Elimination of the Worst Forms of Child Labour was elaborated.

The Committee notes the allegations made by the SFTU that there is no national policy or an action programme for the elimination of the worst forms of child labour and that there is no political will on the part of the Government to address the legislative as well as policy issues concerning child labour.

The Committee notes the Government’s information in its report that the National Action Programme on the Elimination of the Worst Forms of Child Labour is being considered by the Labour Advisory Board and will soon be submitted to Cabinet for adoption. It also notes the Government’s statement that the draft Employment Bill was withdrawn from the Parliament as the social partners felt it necessary to incorporate further issues that had been left out. The Committee requests the Government to take the necessary measures to ensure that the draft Employment Bill will be adopted in the near future, taking into consideration the comments made by the Committee. It also expresses the firm hope that the National Action Programme on the Elimination of the Worst Forms of Child Labour will be adopted without delay. It requests the Government to provide information on any progress made in this regard.

Article 2(1). Scope of application. Informal sector, including 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. It had further noted the Government’s statement that the excluded categories of works would be considered while drafting the Employment Bill.

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, which in relation to the child means a business carried on only by a parent or guardian of the child. The Committee observes that the draft Employment Bill exempts family undertakings from the minimum age provisions. The Committee therefore reminds the Government that the Convention applies to all branches of economic activity and that it covers all types of work, including work in family undertakings, with the exception of light work, which can only be carried out under the conditions laid down in Article 7 of the Convention. The Committee also recalls that the Government has not availed itself of the possibilities of exclusion of limited categories of employment or work as envisaged in Article 4 of the Convention.

Moreover, the Committee notes that according to a report entitled “2010 Findings on the Worst Forms of Child Labour–Swaziland” available on the website of the United Nations High Commissioner for Refugees, children are employed to pick cotton, harvest sugar cane and are engaged in herding in remote locations and domestic service. This report also indicates that children work as porters, transporting heavy loads in self-made carts, collecting fees and calling out routes while climbing in and out of moving vehicles. The Committee therefore observes that, in practice, children appear to be engaged in child labour in a wide range of activities in the informal sector. The Committee therefore requests the Government to take the necessary measures to ensure that children working in the informal sector, including in family undertakings, are entitled in law and in practice to the protection afforded by the Convention. In this regard, it requests the Government to take measures to adapt and strengthen the labour inspection services to effectively monitor children working in the informal sector.

Article 2(3). Age of completion of compulsory education. The Committee had previously noted that according to article 29(6) of the Constitution of 2005, every Swazi child shall have the right to free education in public schools at least up to the end of primary school. However, the Committee had noted with concern that the primary schooling finishes at the age of 12 years while the minimum age for admission to employment is 15 years in Swaziland. Moreover, the Committee had also noted the concerns expressed by the Committee on the Rights of the Child at the high rates of repetition and school drop-outs, as well as the extremely low completion rates in schools.

The Committee notes the Government’s indication that it has enacted the Free Primary Education Act of 2010 which contains provisions requiring parents to send their children to school until the completion of primary schooling. It also notes the Government’s statement that the concerns raised by the Committee with regard to linking the school-leaving age with the minimum age for admission to employment which is 15 years will be considered in due course. The Committee notes that according to the UNICEF statistics for 2009, the net primary school enrolment rates for boys and girls were 82 per cent and 84 per cent respectively, while at the secondary level the net enrolment rates for boys and girls were 31 per cent and 26 per cent respectively. Moreover, the Committee notes that according to the “World Data on Education-Swaziland, seventh edition, 2010–11” compiled and published by UNESCO, of those who enter the education system, only about half of them complete primary education, and many take as long as 10 years to do so, due to high repetition rates. Both the repetition and drop-out rates are particularly high in the first four grades, and by fourth grade, nearly 20 per cent of pupils have dropped out. The Committee expresses its deep concern at the high drop-out rates and low completion rates at the primary level and at the low enrolment rates at the secondary level. Considering that compulsory education is one of the most effective means of combating child labour, the Committee urges the Government to take the necessary measures to extend compulsory education up to the minimum age for admission to employment which is 15 years in Swaziland. It also requests the Government to take the necessary measures to increase the school enrolment rates at the secondary level for children up to the age of 15 years as well as to reduce the drop-out rates at the primary level. It requests the Government to provide information on any developments made in this regard.

Article 3(2). Determination of hazardous work. Following its previous comments, the Committee notes the Government’s statement that once the draft Employment Bill has been adopted, measures will be taken in consultation with the social partners to develop a list of types of hazardous work prohibited to children and young persons as envisaged by section 10(2) of the draft Employment Bill. The Committee reminds the Government that, under the terms of Article 3(2) of the Convention, the types of hazardous work prohibited to children under 18 years of age shall be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned. The Committee therefore requests the Government to take the necessary measures, without delay, to determine the types of hazardous work prohibited to children under 18 years of age pursuant to section 10(2) of the draft Employment Bill. It requests the Government to provide information on any developments made in this regard.

Article 7. Light work. The Committee notes that the restriction on working hours and night work as provided under section 11(2) of the draft Employment Bill, applies to children working in family undertakings. However, the draft Employment Bill does not appear to set a minimum age for light work, including work in family undertakings. The Committee notes that according to the joint ILO–IPEC, UNICEF and World Bank Report on Understanding Children’s Work in Swaziland, 9.3 per cent of children between the ages of 5 to 14 years are engaged in child labour. The Committee recalls that Article 7(1) of the Convention provides that national laws or regulations may permit persons from the age of 13 to engage in light work, which is: (a) not likely to be harmful to their health or 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 the activities in which light work may be permitted and shall prescribe the number of hours during which, and the conditions in which such employment or work may be undertaken. Noting that national legislation does not regulate light work and that a significant number of children under the minimum age are engaged in child labour, the Committee requests the Government to envisage the possibility of adopting provisions within the framework of the draft Employment Bill to regulate and determine the light work activities performed by children between 13 and 15 years of age in accordance with Article 7 of the Convention.

Part V of the report form. Application of the Convention in practice. The Committee had previously noted the Government’s indication that the labour inspection management was in the process of being computerized and that the data on child labour would be compiled and kept thereafter. The Committee notes the absence of information on this point in the Government’s report. 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 compiled and kept on child labour, if any, by the new labour inspection management system.