Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Minimum Age (Fishermen) Convention, 1959 (No. 112) - Australia (Ratification: 1971)

The Committee notes the detailed information provided by the Government in reply to its previous comment. It would be grateful to be provided with further particulars on the following points.

Article 2 of the Convention. Minimum age. Commonwealth. The Committee notes the adoption of the federal Age Discrimination Act 2004 which, according to the indications provided by the Government in its report, does not prejudice the application of the rules respecting the minimum age for admission to employment contained in marine orders, as the latter are designed to ensure the safety of crew and passengers. The Committee also notes that section 39(4) of the Act provides that the Act does not make unlawful anything done in direct compliance with an Act of a State or Territory. It accordingly understands that the Age Discrimination Act 2004 does not prejudice the application of the laws of the various States and Territories examined below.

End of compulsory schooling. Victoria. The Committee notes with interest that the Education Act 1958 has been replaced by the Education and Training Reform Act 2006, section 2.1.1 raises to 16 years the age of completion of compulsory schooling, and that the Act will enter into force by 31 December 2007 at the latest.

South Australia. The Committee notes the Government’s indications that there are few possibilities for violating the law as schooling is compulsory up to the age of 16 years. It however notes that section 81A of the Education Act 1972 provides for possibilities to grant exemption from compulsory schooling if the Minister of Education sees fit. The Committee requests the Government to indicate whether exemptions from compulsory schooling have been granted to allow children under 15 years of age to work on fishing vessels.

Western Australia. The Committee notes that, under the terms of section 190 of the Children and Community Services Act 2004, children under 15 years of age cannot in principle be employed in an establishment carried on for profit. However, it notes that section 191 excludes from this rule employment in family businesses, even though the latter are included in the scope of application of the Convention. The Committee also notes that children at least 13 years of age may perform certain types of work between 6 a.m. and 10 p.m. by virtue of section 191(4) of the Act. The Committee further notes that section 11 of the School Education Act 1999 allows the Minister of Education to exempt a child from compulsory schooling if it is in the interests of the child. It notes in this respect that section 191(5) of the Children and Community Services Act 2004 makes the rules respecting minimum age inapplicable to children covered by an exemption from compulsory schooling. The Committee notes that, according to the Government, it is unlikely that children under 15 years of age work in the fishing sector in view of the restrictions imposed by the Children and Community Services Act 2004. It observes that, according to the Government, 248 children were granted exemptions in 2005, in most cases because they had been admitted to apprenticeships. It further notes the Government’s indications that there are no apprenticeships in the fishing industry. In view of the various types of exemptions authorized by the legislation, the Committee requests the Government to provide fuller information on the measures adopted to ensure compliance with the prohibition of work by children under 15 years of age on fishing vessels.

Hazardous work. New South Wales. The Committee notes that, in reply to its previous comment, the Government indicates that the Children and Young Persons (Care and Protection) Act, No. 157 of 1998, does not require the maritime authority to make a general determination as to whether working on fishing vessels is dangerous. It further notes that in the view of the maritime authority the employment of a child under 15 years of age on a fishing vessel in the open ocean would put the child’s physical well-being at risk. The Committee requests the Government to specify whether the employment of a child under 15 years of age on a fishing vessel in salt waters but not on the high seas is also considered to be dangerous for such children.

Queensland. The Committee notes that, under section 4 of the Child Employment Regulation 2006, the minimum age for admission to work is 13 years, except for specific types of work (delivery work, the entertainment industry or voluntary work). However, it notes that these restrictions are not applicable where the child works in a business that is totally owned by a close adult relative of the child. In this respect, the Committee draws the Government’s attention to the fact that family enterprises are included in the scope of application of the Convention. With regard to hours of work, the Committee notes that section 11 of the Child Employment Act 2006 prohibits an employer to engage a child who is required to attend school during school hours which, according to the Government, would limit employment opportunities for children in the fishing industry. However, the Committee notes that section 115(1) of the Education (General Provisions) Act 1989 allows the chief executive to grant an exemption to the parents of a child with regard to compulsory schooling, which normally continues up to the age of 15 years. The Committee is therefore bound to note that, in addition to possibilities for exemption from compulsory schooling, the legislation allows exceptions which are not envisaged by the Convention to the prohibition to employ children under 15 years of age during the school year: exemption for work in a business that is owned by a close relative of the child; and work authorized outside school hours but during the school year. The Committee requests the Government to indicate the measures adopted to ensure compliance with the prohibition of work by children under 15 years of age on fishing vessels, as set out in the Convention.

Furthermore, the Committee notes the Government’s indications that the legislation does not prohibit the employment of children on fishing vessels, but contains mechanisms to prohibit or restrict inappropriate employment. It also notes the Government’s reference to section 13 of the Child Employment Act 2006, under the terms of which the chief executive of the Department of Industrial Relations may prohibit a particular child from performing certain work that would otherwise be allowable or issue a work limitation notice if, in her or his opinion, the work would interfere with the schooling of the child or would be harmful to the health or safety or physical, mental, moral or social development of the child. It notes that no work limitation notices have been issued to date. However, the Committee notes that section 12 of the Act envisages the possibility of authorizing a child to perform work that would otherwise be prohibited, or at times that would not be normally authorized. The Committee draws the Government’s attention to Article 2, paragraph 3, of the Convention, which only authorizes the issue of such certificates for children of not less than 14 years of age and which requires the competent authority to be satisfied, after having due regard to the health of the child and to the prospective as well as to the immediate benefit to the child of the employment proposed, that such employment will be beneficial to the child. The Committee requests the Government to indicate whether certificates issued under section 12 of the Child Employment Act 2006 may be granted in respect of children under 14 years of age for work on a fishing vessel. The Government is also requested to indicate the manner in which the competent authority ascertains that the work envisaged is beneficial to the child taking into account the health of the child and the benefit to the child of the employment proposed.

The Committee further notes, under the terms of section 8(2) of the Child Employment Act 2006, that apprenticeship is not included in the definition of the term “work”. It recalls that Article 4 of the Convention only allows exemptions to the rules on the minimum age for work by children on board school-ships. The Committee requests the Government to indicate whether apprentices in the fishing sector work on board school-ships and to specify the rules and limits applicable to apprentice fishers.

Exemptions from compulsory schooling. Tasmania. The Committee notes that, under the terms of section 4 of the Education Act 1994, schooling is compulsory up to the age of 16 years. It also notes that section 82 of this Act provides that a person must not employ a school-aged child during the hours when the child is required to attend school. However, the Committee notes that, by virtue of section 5(2) of the above Act, the Secretary of the Department of Education may grant an exemption to a child from compulsory schooling at his or her own initiative or on application by the parents, if satisfied that it is in the best interests of the child’s education. The Committee draws the Government’s attention to the fact that, under the terms of Article 2, paragraph 1, of the Convention, children under the age of 15 years shall not be employed or work on fishing vessels except in the case of exemptions. The Convention authorizes exemptions for activities during school holidays and in the event that a certificate is issued permitting the employment of children of not less than 14 years, on condition that such employment is beneficial to the child and that due regard is had to the health and physical condition of the child and to the prospective as well as to the immediate benefit to the child of the employment proposed. The Committee requests the Government to indicate whether exemptions have been granted from compulsory schooling with a view to allowing children under 15 years of age to work on fishing vessels.

Non-applicability. Australian Capital Territory. The Committee notes that there are no bodies of salt water within the Australian Capital Territory and that there are therefore no fishing vessels within the meaning of the Convention.

Hazardous work. Northern Territory. The Committee notes that, in reply to its previous comment, the Government indicates that the Department of Health and Community Services does not conduct inspections on fishing boats but that, if the Department received information regarding children working on fishing boats, it would be required to consider, under the Community Welfare Act 1983, whether the child is under 15 years of age and working between 10 p.m. and 6 a.m. and whether the work is dangerous to the health or safety of the child. It notes that, under the terms of section 24 of the Education Act 1994, the Minister of Employment, Education and Training may exempt a child from compulsory schooling for a specified period. It further notes that section 30 of the Act allows the Minister to grant exemptions from the provisions limiting the hours of work of children who are required to attend school. The Committee also notes the Government’s confirmation that working on a fishing boat is not in itself sufficient to be regarded as dangerous and that its classification as such would depend on the age of the child, the hours of work, the type of work performed, whether the child is of school age and if the work is affecting school attendance.

The Committee wishes to recall that the Convention in principle establishes the prohibition of work by children under 15 years of age on fishing vessels. The only exceptions allowed relate to: (1) work during school holidays under certain conditions (Article 2, paragraph 2, of the Convention); (2) the employment of children of not less than 14 years of age when the work is beneficial to the child having due regard to the child’s health and the benefit to the child of the employment (Article 2, paragraph 3); and (3) work on school-ships (Article 4). Furthermore, in relation to the statement that work on a fishing vessel is not in itself dangerous, the Committee wishes to recall that the ILO considers fishing to be one of the most hazardous occupations in the world (on this subject, see: ILO: Safety and health in the fishing industry, report for discussion at the Tripartite Meeting on Safety and Health in the Fishing Industry (Geneva, 1999)). The Committee requests the Government to indicate the measures adopted to ensure compliance with the provisions of the Convention prohibiting work by children under the age of 15 years on fishing vessels outside the limited exceptions indicated above.

Part V of the report form. The Committee notes the information provided by the Government on the application of the Convention in practice in the Territories of Western Australia, South Australia, Victoria, Queensland and Northern Territory. It requests the Government to continue providing updated information of this type. The Government is also asked to provide a general appreciation of the manner in which the Convention is applied in practice in the other States (New South Wales and Tasmania) including, for instance, extracts from the reports of the inspection services and information concerning the number and nature of the contraventions reported of the legislation on the minimum age for work in the fishing sector.

Finally, the Committee notes that no specific measures are currently envisaged to follow up the decision taken by the Governing Body with regard to the Convention following its examination by the Working Party on Policy regarding the Revision of Standards (document GB.279/LILS/3(Rev.1) of November 2000. It requests the Government to provide information on any further measure that it may take in this respect.

Furthermore, the Committee draws the Government’s attention to the new Work in Fishing Convention, which was adopted by the International Labour Conference at its 96th Session (June 2007) and which revises and updates most ILO instruments on fishing, including Convention No. 112. The Committee requests the Government to give full attention to this new overall instrument on the working and living conditions of fishers and to keep the Office informed of any decision it may take with a view to its ratification.