Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Minimum Age Convention, 1973 (No. 138) - Haiti (Ratification: 2009)

The Committee notes the Government’s first report.

Article 2(1) of the Convention. Minimum age for admission to employment or work. The Committee notes that, at the time of ratification, the Government specified 14 years as the minimum age for admission to employment or work. The Committee also notes the Government’s indication that organizations of workers and employers were consulted on the fixing of the minimum age at 14 years, in conformity with Article 2(4) of the Convention. In this regard, the Committee notes that section 335 of the Labour Code states that the minimum age for admission to work in agricultural, industrial and commercial enterprises is 15 years of age. Section 337 of the Labour Code also states that minors between 15 and 18 years must obtain a certificate or work permit from the Directorate of Labour before beginning to work in an agricultural, industrial or commercial establishment. Moreover, the Committee notes the statement in a communication of the Ministry of Social Affairs and Labour (MAST), concerning the ratification of the Convention, submitted with the Government’s report, that all enterprises and professional or artistic organizations requiring the participation of a child under the minimum age defined in the Labour Code must first consult MAST and obtain authorization for the specified period. This communication indicates that all persons and enterprises who engage children under the age of 14 in work shall be subject to sanctions provided by the legislation. The Committee notes the Government’s statement in its report that MAST issued this communication not only to inform the population of the ratification of the Convention, but also to order its application.

Articles 2(1) and 5. Limitation of the scope of application of the Convention to certain branches of economic activity. Informal economy. The Committee notes that, by virtue of section 2 of the Labour Code, the term “work” applies only to activity performed pursuant to an employment contract. The Committee therefore observes that the provisions of the Labour Code concerning the minimum age for admission to employment do not appear to apply to work performed outside of a labour agreement between an employer and employee, such as self-employment or work in the informal economy. However, the Committee notes that the Government, in its instrument of ratification, limited the scope of the Convention, as permitted under Article 5 of the Convention. The Government chose to exclude the activities of children in family enterprises, particularly in the informal and agricultural sectors, in work which is performed outside of school hours for up to three hours a day. With respect to this exclusion, the Government indicates that children may begin to provide help to their parents from the age of 12 years, under the supervision of the Institute for Social Welfare and Research and MAST. The Committee further notes that the Government indicated, in its 2009 report submitted under the Worst Forms of Child Labour Convention, 1999 (No. 182), that child labour is virtually non-existent in the formal sector and is found above all in the informal sector. The Committee requests the Government to provide information on any measures taken or envisaged to ensure that children not excluded from the application of the Convention pursuant to Article 5, benefit from the protection provided by the Convention, such as children under 12 years. The Committee also requests the Government to continue to provide information on the general position as regards the employment or work of young persons and children in the branches of activity which are excluded from the scope of application, as well as all progress made towards a wider application of the provisions of the Convention, in conformity with Article 5(4)(a) of the Convention.

Article 2(3). Age of completion of compulsory education. The Committee notes that article 32 of the Constitution provides that the State guarantees the right to education, and article 32-1 states that the State must make schooling available to all, free of charge. Moreover, article 32-3 of the Constitution states that primary schooling is compulsory under penalties to be prescribed by law. However, the Committee notes the Government’s statement, in its report to the Human Rights Council for the Universal Periodic Review of 19 July 2011, that while primary education is compulsory and free under the Constitution, the Government is not yet in a position to guarantee full compliance with this constitutional provision due to limited resources (A/HRC/WG.6/12/HTI/1, paragraph 52). Nonetheless, the Government indicates that it is implementing a National Action Strategy for Education for All for the period 2008–15. The Committee also notes the information in this report that one of the six areas identified for priority action in the Action Plan for the National Reconstruction and Development of Haiti (PARDH), developed following the 2010 earthquake, is education (A/HRC/WG.6/12/HTI/1, paragraph 23). The Government further indicates in this report that in 2011, the President launched the National Education Fund, with a sum of approximately US$360 million over five years to fund free primary schooling (A/HRC/WG.6/12/HTI/1, paragraph 76). In addition, the Committee notes the information from the ILO–IPEC that the Government has shown strong support for making education more accessible to poor children by waiving school fees in some areas, and that conditional cash transfer programmes to provide support to vulnerable families are being developed.

However, the Committee also notes the information in the compilation report prepared by the Office of the High Commissioner for Human Rights for the Universal Periodic Review of 25 July 2011, that the UN country team in Haiti indicated that prior to the earthquake, the majority of children did not attend school, and that the situation worsened following the earthquake. This report indicates that despite considerable efforts in 2010, educational services remained inadequate, inefficient and suffered from low standards (A/HRC/WG.6/12/HTI/2, paragraph 65). Moreover, the Committee notes the statement in a communication from the International Trade Union Confederation (ITUC) of 14 September 2011 that access to education in Haiti remains a challenge, aggravated by the earthquake in 2010. The ITUC states that education is largely provided through private education institutions, which makes accessibility difficult for the majority of Haitian families. Considering that compulsory education is one of the most effective means of combating child labour, the Committee requests the Government to provide information on any measures taken or envisaged to ensure the effective implementation of compulsory education up the minimum age of admission to employment of 14 years.

Article 3(1). Minimum age for admission to hazardous work. The Committee notes that section 2(5) of the Act on the prohibition and elimination of all forms of abuse, violence, or inhumane treatment against children of 2003 (Act of 2003) prohibits exploitation of children such as work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children. The Committee also notes that under section 333 of the Labour Code, minors may not be employed in work which is insalubrious, arduous or hazardous in physical or moral terms, or offer their services in places selling alcoholic beverages and that section 334 of the Labour Code prohibits night work for minors under 18 years of age in public or private industrial enterprises or their outbuildings. In addition, the Committee notes that section 10 of the Labour Code states that minors who have reached the minimum age for admission to work in industrial, agricultural and commercial establishments are subject to special protection. Recalling that pursuant to Article 3(1) of the Convention, hazardous work should be prohibited to all persons under 18, the Committee requests the Government to indicate the meaning of the term “child” in section 2(5) of the Act of 2003 as well as the term “minor” in section 333 of the Labour Code.

Article 3(3). Determination of hazardous types of work. The Committee notes the information in the Government’s report submitted under Convention No. 182 in 2009 that a consultant had been recruited by MAST with a view to drawing up a list of hazardous types of work, and that the development of this list would be done with the support of workers’ and employers’ organizations. In this regard, the Committee notes the information from the ILO–IPEC of January 2012 that through the implementation of a project entitled “Protecting children from child labour during the early recovery phase”, launched in 2011, the ILO–IPEC intends to provide technical support for the elaboration, approval and dissemination of the list of hazardous work. The Committee requests the Government to pursue its efforts to elaborate and adopt a list of types of hazardous work which are prohibited for persons under 18 years, after consultation with the organizations of employers and workers concerned.

Article 6. Apprenticeship. The Committee notes that section 73 of the Labour Code specifies a minimum age of 14 years for admission to apprenticeship, following a medical examination. The Labour Code also states that contracts for apprenticeships shall be established in writing (section 74), containing the name, age and address of the apprentice, the profession being learned, as well as the duration, salary and holidays of the apprenticeship (section 75).

Article 7. The Committee notes the statement in the Government’s report that no use is made of the flexibility clause contained in Article 7 of the Convention.

Article 8. Artistic performances. The Committee notes the Government’s statement that no use is made of the exceptions permitted in Article 8 of the Convention.

Article 9(1). Penalties. The Committee notes that section 340 of the Labour Code provides that all employers who engage a minor without a work certificate or work permit shall be liable to a fine of between 3,000 and 5,000 Haitian gourdes (HTG) (between US$73 and US$123) for each violation. The Committee requests the Government to provide information on the application of section 340 of the Labour Code in practice, including the number and nature of penalties imposed. The Committee also requests the Government to provide information on any penalties applicable for other violations of the Convention concerning the employment of children and young persons, such as penalties for employing children under the minimum age of 14 years or employing children under 18 years in hazardous types of work.

Article 9(3). Keeping of registers. The Committee notes that section 339 of the Labour Code states that all employers employing minors between 15 and 18 years of age must keep a register containing the full name and age of the worker as well as their work schedule, salary, work certificate number and the date on which they started work. Section 339 further states that this register must be presented at the request of a labour inspector, and shall be examined by the labour inspector during each inspection of the enterprise.

Part V of the report form. Application of the Convention in practice. 1. General application. The Committee notes the information from ILO–IPEC that, with the technical assistance of the ILO–IPEC statistical information and monitoring programme on child labour (SIMPOC), and other relevant specialists based in Costa Rica, a rapid assessment study is being developed to provide baseline data on the situation of child labour in Haiti in the post-earthquake context. The ILO–IPEC indicates that the results of this study will provide critical inputs to the process of revising the list of hazardous occupations and processes as well as inputs to advocacy, awareness raising, improvements in policies and legislation, and future intervention programming. The Committee encourages the Government to pursue its efforts, in collaboration with the ILO–IPEC, to ensure that statistical information on the nature, scope and trends of the employment of children and young persons is made available. It requests the Government to provide a copy of the rapid assessment study, once completed.

2. Child domestic work. Referring to its comments made under Convention No. 182, the Committee observes that section 3 of the Act of 2003 states that a child may be entrusted to a host family in the context of a relationship of assistance and solidarity. In this regard, the Committee notes that the United Nations Special Rapporteur on contemporary forms of slavery, its causes and consequences, in her report of 4 September 2009, expressed deep concern at the vagueness of the concept of “assistance and solidarity” and considered that the provisions of the Act of 2003 allow the practice of restavèk (whereby children are given by their families to more affluent families, in the hope that they will be provided with food, clothing, shelter, schooling and health care in return for their domestic labour) to be perpetuated (A/HRC/12/21/Add.1, paragraph 16). The Committee notes the statement of the Special Rapporteur that the single largest sector utilizing child labour in Haiti is unpaid domestic service, and that approximately one child in ten works as a domestic servant (A/HRC/12/21/Add.1, paragraph 23). Moreover, the Committee notes that the Special Rapporteur expressed concern that the restavèk children are economically exploited as they are not being compensated for their work and are performing tasks that not only interfere with their education but are also harmful for their development and health (A/HRC/12/21/Add.1, paragraph 27). The Committee therefore urges the Government to take the necessary measures to ensure that the minimum age for admission to work is, in practice, applied to children working as domestic workers, including restavèk children. The Committee requests the Government to provide information on the measures taken in this regard, and the results achieved.