Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Minimum Age Convention, 1973 (No. 138) - Fiji (Ratification: 2003)

The Committee takes note of the Government’s report. It requests it to provide information on the following points.

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour. In its previous comments, the Committee noted the Government’s information that the country is currently in the process of elaborating a new Employment Relations Bill that would replace existing labour laws and would make relevant changes so as to harmonize the legislation with the Convention. The Committee notes the Government’s information that the Employment Relations Bill was extensively discussed in the Labour Advisory Board, which is comprised of the workers’ and employers’ representatives in addition to the Government. The Committee once again requests the Government to keep it informed of the progress made in the adoption of the draft Employment Relations Bill and to provide the text once it has been adopted. The Committee also asks the Government to provide information on other national policy measures taken or envisaged to effectively reduce and eliminate child labour.

Article 2, paragraph 1. Minimum age for admission to employment or work. In its previous comments, the Committee noted that, according to section 59(1) of the Employment Ordinance, no child under the age of 12 years shall be employed in any capacity whatsoever. It also noted that the Committee on the Rights of the Child in its Concluding Observations (CRC/C/15/Add.89 of 24 June 1998, paragraph 23) was concerned about the existing low minimum age for access to work, set at 12 years. The Committee recalled that, by virtue of Article 2, paragraph 1, of the Convention, no one under the age specified upon ratification shall be admitted to employment or work in any occupation. It noted that section 59(1) of the Employment Ordinance establishes a minimum age for admission to employment or work which is lower than that specified by the Government when ratifying the Convention, namely 15 years. However, the Committee notes that section 92 of the draft Employment Relations Bill sets the minimum age for admission to employment or work at 15 years, in conformity with the age specified when ratifying the Convention. The Committee once again trusts that this draft Employment Relations Bill will be adopted shortly.

Article 3, paragraphs 1 and 2. Minimum age for admission to and determination of hazardous work. In its previous comments, the Committee observed that under the terms of section 61 of the Employment Ordinance, no child (defined as a person under the age of 15) or young person (defined as a person over the age of 15 but under the age of 18) shall be employed in any work which, in the opinion of the proper authority, is injurious to health, dangerous or otherwise unsuitable. It noted, however, that the national legislation did not determine the types of hazardous work pursuant to section 61 of the Employment Ordinance. The Committee requested the Government to provide information on the existing legal provisions which determine a list of activities and occupations prohibited to persons below 18 years of age and on the consultations held with relevant organizations of employers and workers on this subject.

The Committee notes that section 95(1) of the Employment Relations Bill prohibits the employment of children underground in mines. It also notes that section 95(2) of the Employment Relations Bill provides that the Minister of Labour may, after consulting the National Occupational Health and Safety Advisory Board, and by order in the Gazette, declare any employment or workplace to be a prohibited or restricted employment or workplace on the ground that it is injurious to health or is hazardous, dangerous, or unsuitable, including attendance on machinery, working with hazardous substances, driving motor vehicles, heavy physical labour, the care of children or work within security services. The Committee recalls that, under the terms of Article 3, paragraph 2, of the Convention, the types of work which, by their nature or the circumstances in which they are carried out, are likely to jeopardize the health, safety or morals of young persons, 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 provide information on any order issued by the Minister of Labour that determines a list of activities and occupations prohibited to persons below 18 years of age, pursuant to section 95(2) of the Employment Relations Bill. It further requests the Government to provide information on the consultations held with organizations of employers and workers concerned on this subject.

Article 4. Exclusion of limited categories of employment or work from the application of the Convention. In its previous comments, the Committee noted that, according to section 57 of the Employment Ordinance, no provision of Part VIII (Women, Young Persons and Children) shall apply to an industrial or other undertaking or to any ship, in which only members of the same family are employed, unless such employment, by its nature and the circumstances in which it is carried on, is dangerous to the life, health or morals of the persons employed therein, or to any school, institution or training ship which is for the time being approved and supervised by the Permanent Secretary for Education. The Committee recalled that, under Article 4, paragraph 2, each Member which ratifies the Convention shall list, in its first report, any categories of employment which may have been excluded, giving the reasons for such exclusion, and shall state in subsequent reports the position of its law and practice in respect of the categories excluded and the extent to which effect has been given or is proposed to be given to the Convention in respect of such categories. The Committee requested the Government to indicate the special and substantial problems of application that have led to the exclusion and to provide information on consultations held with employers’ and workers’ organizations in this regard. The Committee notes that the Government has not provided any information on this subject. The Committee once again requests the Government to provide information regarding the exclusions outlined in section 57 of the Employment Ordinance.

Article 7. Light work. In its previous comments, the Committee noted that, according to section 59 of the Employment Ordinance, no child under the age of 12 years shall be employed in any capacity whatsoever, provided that the provision of this section shall not apply to any child employed in light work suitable to his capacity in an agricultural undertaking which is owned and operated by the family of which he is a member. Therefore, the Employment Ordinance permits light work by children below the age of 12 years. The Committee reminded the Government that, pursuant to Article 7, paragraph 1, of the Convention, only children from 13 years of age may be permitted to perform light work which is not likely to be harmful to their health or development and not such as to prejudice their attendance at school, their participation in vocational orientation or training programmes. The Committee noted that, according to section 93(2) of the draft Employment Relations Bill, children between 13 and 15 years may be employed in light work. The Committee trusts that the draft Employment Relations Bill, which provides that only children over 13 years of age are allowed to carry out light work, will soon be adopted.

Article 9, paragraph 3. Registers of employment. In its previous comments, the Committee noted that, according to section 71(1) of the Employment Ordinance, the employer of children and young persons in an industrial undertaking shall keep a register of all children and young persons in his/her employment and shall include in such register particulars of their ages or apparent ages. It therefore noted that, according to the provision mentioned above, the obligation of an employer to keep a register concerns only industrial undertakings. It reminded the Government that Article 9, paragraph 3, of the Convention stipulates that national laws or regulations or the competent authority shall prescribe the registers or other documents which shall be kept and made available by every employer of persons under the age of 18. The Committee notes that section 99 of the draft Employment Relations Bill provides that an employer of children in a workplace, or in an occupation which forms part of a workplace, must keep a register of all children under the age of 18. Moreover, the register must include particulars of their ages, as well as the date of commencement and termination of their employment. The Committee trusts that the Employment Relations Bill will soon be adopted.

Parts III and IV of the report form. Enforcement mechanisms. In its previous comments, the Committee noted that section 5 of the Employment Ordinance provides for the appointment of a Permanent Secretary of Labour for the purposes of the administration of this Act. The effective enforcement of the Convention through inspectors is primarily ensured by labour officers and labour inspectors authorized by the Permanent Secretary, who, pursuant to section 8 of the Employment Ordinance, may institute proceedings in respect of any offence committed by any person against any of the provisions of this Act. The Committee notes the Government’s statement that there has been no decision by courts of law or other tribunals of questions of principles relating to the application of the Convention.

Part V of the report form. Application of the Convention in practice. The Committee takes note of the Government’s information that, at present, compulsory education is encouraged for children which is free. With the strict inspection procedures undertaken by inspectorate officers, employers are discouraged from employing children. The Committee repeats its request to the Government to provide a general appreciation of the manner in which the Convention is applied in practice, including court decisions regarding the legislation relevant to the application of the Convention, available statistical data on the employment of children and young persons, extracts from inspection services reports, information on the number and nature of contraventions reported, etc., even if such data is in the early stages of compilation.