Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

Article 1 of the Convention. National policy and practical application of the Convention. In its previous comments, the Committee noted that in Malawi, the National Action Plan (NAP) on Child Labour for Malawi (2010–16) was being implemented, a national child labour survey was under way, and that the project on Achieving Reduction of Child Labour in Support of Education (ARISE) was ongoing.

The Committee notes from the ARISE Annual Review of 2017 that about 7,063 children were withdrawn from the farms and placed in schools; 10,028 community members and teachers were educated on child labour; 1,569 households were provided with improved livelihoods; and 1,550 children were enrolled in community-based childcare centers. It also notes the information from the Development Cooperation Progress Report of the ILO–IPEC that since 2016, Malawi has been actively implementing the project entitled “Strengthening Social Dialogue in selected Tobacco Growing Countries”. Within this project, action programmes with the National Smallholder Farmer’s Association of Malawi (NASFAM) and the Tobacco Association of Malawi (TAMA) have been developed to address child labour through social dialogue. Accordingly, NASFAM has trained over 80 association leaders and NASFAM staff members in Kasungo district on how to eliminate child labour and to ensure child labour free farms. The Committee notes, however, that according to the findings of the 2015 National Child Labour Survey (NCLS), 38 per cent (over 2.1 million) children aged 5–17 years are involved in child labour. About 55 per cent of these children are engaged in hazardous work. While noting the measures taken by the Government, the Committee expresses its deep concern at the significant number of children involved in child labour in Malawi, including in hazardous conditions. The Committee therefore urges the Government to take the necessary measures to ensure the progressive elimination of child labour and to provide information on the results achieved. The Committee further requests the Government to provide information on the implementation of the NAP, the ARISE project and the action programmes developed by NASFAM and TAMA as well as their impacts in eliminating child labour.

Article 2(1). Scope of application. Self-employed children, children working in the informal economy and labour inspectorate. In its previous comments, the Committee noted that the Employment Act was applicable only where there was an employment contract or labour relationship and did not cover self-employment. It also noted the Government’s statement that it was in the process of enacting the Tenancy Bill which establishes a minimum age for employment in the tobacco sector and provides for frequent inspections of tobacco farms.

The Committee observes that the Government’s report does not contain any information in this regard. The Committee notes that according to the findings of the 2015 NCLS, about 72 per cent of children in child labour are employed in the agricultural sector, followed by 23 per cent in domestic work. The Committee therefore urges the Government to take the necessary measures to ensure that self-employed children or children working in the informal economy benefit from the protection of the Convention. In this regard, the Committee requests the Government to strengthen the capacity and expand the reach of the labour inspectorate services to enable it to monitor child labour in the informal economy, particularly in the agricultural sector. It requests the Government to provide information on specific measures taken in this regard, as well as on the results achieved, including the number and nature of violations relating to the employment of children and young persons detected by the labour inspectorate. The Committee finally requests the Government to provide information on any progress made with regard to the enactment of the Tenancy Bill and the measures taken for inspections of tobacco farms following its adoption.

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 also noted that, according to the NAP on Child Labour, inconsistencies among various pieces of legislation relating to children, including the Constitution, remained an issue.

The Committee once again notes with concern that the Government does not provide any information on this point in its report. 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 strongly urges the Government to take the necessary measures 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, in particular since the Employment Act does not cover self-employed workers.

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 information that the draft model register would be finalized by the end of 2010, and that this draft would be submitted to the Tripartite Labour Advisory Council for adoption. The Government also indicated that the model register of employment would be in conformity with Article 9(3) of the Convention and would be submitted to the Committee as soon as it was finalized. In this regard, the Committee reminded 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.

The Committee notes that the Government report contains no information on this matter. Observing that the Government has been referring to the model register of employment since 2006, the Committee strongly urges the Government to take the necessary measures to ensure its elaboration and adoption without delay. It once again requests that the Government supply a copy of the model register as soon as it is adopted.