Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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

Article 1 of the Convention and Part V of the report form. National policy and practical application of the Convention. In its previous comments, the Committee noted that, while the Malawi Multiple Indicator Cluster Survey, 2006 indicated that the total child labour rate had decreased, the relevant legislation was not strongly enforced and a significant number of persons under 14 continued to work. The Committee also noted the implementation of the ILO–IPEC country programme to combat child labour in Malawi, which featured four action programmes. The Committee further noted the Government’s information that a National Action Plan (NAP) on child labour was under development.

The Committee notes the Government’s statement that it will work, along with the social partners, to enforce the legislation (particularly Employment Act No. 6 of 2000 (Employment Act)) for the purpose of eliminating the employment of children below 14 years. The Committee also notes the information in the
ILO–IPEC Technical Progress Report of 18 March 2010, for the project “Support to the National Action Plan to Combat Child Labour in Malawi” (SNAP project TPR) that the National Child Labour Policy and the NAP on the elimination of child labour were concluded and presented to the Government in December 2009. The SNAP project TPR also indicates that the National Policy would be tabled in Parliament and the NAP was due for adoption in the Principal Secretaries meeting. This document further indicates that the Ministry of Labour continues to set aside specific funds for child labour through the Child Labour Unit, which allocates these funds to district level child labour activities. In addition, a baseline survey on child labour in Malawi was initiated in February 2010 within the framework of the SNAP project, in consultation with the National Statistics Office. The Committee further notes the information in the Government’s reply to the list of issues raised by the Committee on the Rights of the Child (CRC) of 9 January 2009, that a law enforcement training manual was developed for police, social welfare officers, child labour officers and magistrates on how deal with cases of child labour (CRC/C/MWI/Q/2/Add.1, paragraph 64).

Nonetheless, the Committee notes the statement in the SNAP project TPR that the Government is moving slowly in the final adoption of the national policy and NAP even though these have been adopted at ministerial level. The Committee also notes that the Malawi Multiple Indicator Cluster Survey, 2006 indicates that approximately 33.6 per cent of all persons between the ages of
5 and 14 (1.4 million children) are involved in economic activity in Malawi. The Committee expresses its concern at the considerable number of children under 14 who are engaged in economic activity. It once again urges the Government to redouble its efforts to ensure the progressive abolition of child labour, and the enforcement of the relevant legislation. In this regard, it urges the Government to take the necessary measures to ensure the adoption and implementation of the NAP and asks the Government to supply a copy of it as soon as it is adopted. Lastly, the Committee encourages the Government to continue its collaboration with ILO–IPEC in the development of a baseline survey, and to provide the results of this survey when they are available.

Article 2(1). Scope of application. In its previous comments, the Committee noted that the Employment Act is applicable only where there is an employment contract or labour relationship and does not cover self-employment. It reminded the Government that the Convention covers all types of employment or work, whether there is a contract of employment or not. Following consultation on this subject, the Government indicated that the social partners were unclear as to how the Employment Act could be applied to self-employed children, particularly those who work on family farms or accompany their parents to work as tenants. The Committee therefore drew the Government’s attention to possible alternatives for providing self-employed children the protection of the Convention, including the elaboration of legislation specifically to ensure children’s rights or by strengthening the labour inspectorate in sectors where children are often self-employed, such as the commercial agricultural sector. In this regard, the Committee noted the ILO–IPEC information that there had been no progress made in the past ten years in the adoption of the Tenancy Labour Bill, a Bill which establishes a minimum age for employment in the tobacco sector and provides for frequent inspections of tobacco estates. The Committee therefore urged the Government to take measures to ensure that the Tenancy Labour Bill was adopted without delay.

The Committee notes the Government’s statement that the applicability of the Employment Act to self-employed persons remains a challenge. The Government indicates that it has taken note of the alternatives that could be pursued, and that it will consider these options. The Committee also notes the Government’s indication that the Tenancy Labour Bill has been finalized technically and is awaiting Cabinet approval (prior to submission to Parliament). Nonetheless, the Government indicates that it has a considerable backlog of legislation to deal with. The Committee further notes the information in the SNAP project TPR that the discussion of the Tenancy Labour Bill in Parliament in 2010 will be a positive development for the welfare and protection of children at risk of child labour. In this regard, the Committee notes that the CRC, in its concluding observations of 27 March 2009, expressed concern that many children between 15–17 are engaged in work that is considered as hazardous, especially in the tobacco and tea estate sector (which continues to be a major source of child labour) (CRC/C/MWI/CO/2, paragraph 66). The Committee therefore expresses its concern that the Tenancy Labour Bill has yet to be adopted and urges the Government to take the necessary measures to ensure the adoption of the Bill in the very near future. It hopes that, in adopting the Tenancy Labour Bill, the labour inspection component concerning children working in the commercial agricultural sector on their own account will be strengthened. In this regard, the Committee requests the Government to strengthen its efforts to adapt and strengthen the labour inspection services, in order to ensure that the protection established by the Convention is applied to all self-employed working children.

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 encouraged the Government to take the necessary measures to ensure that this Constitutional Amendment was adopted in the near future.

The Committee notes the Government’s statement that discussions on the review of the Constitution, including article 23, are still ongoing. 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 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.

Article 3(2). Determination of types of hazardous work. The Committee previously noted that, in the implementation of section 22(2) of the Employment Act, the Minister can, in consultation with appropriate organizations of employers and employees, specify, by a notice published in the Gazette, occupations or activities which, in his opinion, are likely to be: (a) harmful to the health, safety, education, morals or development of persons between the ages of 14–18 years; or (b) prejudicial to their attendance at school or any other vocational or training programme. In this regard, the Government indicated that it had consulted with the social partners and had conducted consultative workshops in 11 districts in the country. The Committee noted that the final draft list of types of hazardous work was produced and ready for submission to the Ministry of Justice. The Committee urged the Government to adopt this list in the near future.

The Committee notes the Government’s information that the final draft list has been submitted to the Ministry of Justice. The Committee therefore once again urges the Government to take the necessary measures to ensure that the draft list of types of hazardous work is adopted without delay. It requests the Government to provide a copy of this list as soon as it is adopted.

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 indication that labour inspectors have demanded labour registers when inspecting any workplace and, where no such register exists, the owner is advised to purchase one which is available at the government press or any bookshop. The Government indicated that the applicable parliamentary Act still did not have a model register, that the registers available at the government press are general and that employers use different formats. Nonetheless, the Government indicated that following discussions with the social partners, it was resolved to develop standard templates for various legislative prescriptions, including a model for a labour register. The Committee expressed the hope that this model register would be in conformity with Article 9(3) of the Convention.

The Committee notes the information in the Government’s report that the draft model register will be finalized before the end of the year, and that this draft will be submitted to the Tripartite Labour Advisory Council for adoption. In this regard, the Committee reminds 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 requests the Government to take the necessary measures to ensure the elaboration and adoption of a model register of employment, in conformity with Article 9(3) of the Convention. It requests the Government to supply a copy of the model register as soon as it is adopted.