Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Article 2 of the Convention. Minimum age. South Australia. Further to its previous comment, the Committee notes the Government’s indications that pursuant to section 81A of the Education Act 1972, individual children may be granted permission under exceptional circumstances to work in a particular occupation, including the fishing industry. The Government adds that ministerial exemptions may be issued for a variety of reasons, such as family welfare, and health or cultural requirements, they may be conditional or unconditional and they are often issued for short periods of time. While noting the confidential character of the information contained in those ministerial exemptions, the Committee requests the Government to provide more detailed redacted information to enable the Committee to assess whether the conditions of Article 2(3) of the Convention are fully met.

Western Australia. Further to its previous comment, the Committees notes the Government’s indication that while the Children and Community Services Act 2004 does not expressly prevent a child of less than 15 years of age from being employed in the Western Australian fishing industry, in practice, it is highly unlikely that children of less than 15 years of age would be eligible to be employed given the restrictions and requirements of the Western Australian Marine Act 1982, the Western Australian Marine (Certificates of Competency and Safety Manning) Regulations 1983 and the School Education Act 1999. The Committee hopes that the Government will consider on the first suitable occasion the possibility to include in the Children and Community Services Act a general prohibition against the employment of children under the age of 15 on board fishing vessels subject to the limited exceptions allowed under Articles 2(2)–(3) and 4 of the Convention.

New South Wales. Further to its previous comment, the Committee notes the Government’s indication that the authorities of New South Wales consider that the employment of children under 15 years of age on board fishing vessels operating in salt water, and not only in the open ocean, may be dangerous and may put their well-being at risk. Recalling that under Article 2 of the Convention, children under the age of 15 years may only occasionally take part in activities on board fishing vessels on condition that these activities are not harmful to their health, the Committee requests the Government to consider the possibility of inserting in the Children and Young Persons (Care and Protection) Act a general prohibition against the employment of children under the age of 15 on board fishing vessels subject to the limited exceptions allowed under Articles 2(2)–(3) and 4 of the Convention.

Queensland. Further to its previous comment, the Committee notes the Government’s references to the Education (General Provisions) Act 2006 and the Child Employment Act 2006 prohibiting children of compulsory school age from working during school hours. It also notes the information that while the Child Employment Act permits children to work in family enterprises, parents are still obliged to ensure that their children are attending compulsory school in accordance with the Education Act. In addition, the Director-General of the Department of Justice and Attorney-General can prohibit a child from performing work considered to be harmful by issuing a work limitation notice. Furthermore, with reference to section 12 of the Child Employment Act authorizing the chief executive of the Department of Industrial Relations to issue certificates authorizing a child to undertake work that would normally be prohibited or not normally authorized, the Committee notes the Government’s indication that such certificates may permit children to work on fishing vessels under the condition that the work does not interfere with their schooling and will not be harmful to their health or safety or physical, mental, moral or social development. It also notes that during the reporting period no such certificates have been issued. Moreover, with regard to the possibility to exempt children from compulsory schooling requirements under section 185 of the Education (General Provisions) Act 2006, the Committee notes the Government’s indications that such exemptions are only made in exceptional circumstances and in cases where school attendance is impossible or should not be required (for example, in case of a young person whose parent is terminally ill or who has just become a parent). While noting that as a result of the various checks and balances provided for in the relevant legislation, the chances for children under 15 years of age to be employed on board fishing vessels are fairly limited, the Committee requests the Government to consider on a suitable opportunity the possibility of bringing the Education (General Provisions) Act 2006 and the Child Employment Act 2006 into closer conformity with the requirements of the Convention by including a general prohibition against the employment of children under the age of 15 on board fishing vessels subject to the limited exceptions allowed under Articles 2(2)–(3) and 4 of the Convention.

Moreover, the Committee notes the Government’s indication that student and young persons of less than 15 years of age may, in accordance with the Vocational Education, Training and Employment Act 2000 (VETA), take part in a range of employment types including apprenticeships, traineeships and vocational placement. Recalling that Article 4 of the Convention only allows exemptions to the rules on the minimum age for work by children on board school-ships provided that such work is approved and supervised by public authority, the Committee requests the Government to further explain how compliance is ensured with these requirements of the Convention under the Vocational Education, Training and Employment Act.

Tasmania. Further to its previous comment, the Committee notes the Government’s indications that pursuant to sections 5 and 82 of the Education Act 1994, the Secretary of the Education Department may exempt school-aged children from compulsory schooling and authorize them to work. While noting the confidential character of the information contained in the exemptions granted by the Secretary of the Education Department, the Committee requests the Government to provide more detailed redacted information to enable the Committee to assess whether the conditions of Article 2(3) of the Convention are fully met.

Northern Territory. Further to its previous comment, the Committee notes the Government’s indication that following the recent amendment of the Education Act the conditions under which the Minister of Employment may grant exemptions from compulsory schooling have been tightened and they can only be granted for a specified period and only if special circumstances so require (for instance where the child is seriously ill). While noting that in practice it is unlikely that children under 15 years of age are to be found legally working on board fishing vessels, the Committee hopes that the Government will consider on the first suitable occasion the possibility to include in the Care and Protection of Children Act a general prohibition against the employment of children under the age of 15 on board fishing vessels subject to the limited exceptions allowed under Articles 2(2)–(3) and 4 of the Convention.

Part V of the report form. Practical application. The Committee notes the detailed information provided by the Government with regard to the practical application of the Convention in Victoria, Queensland, Tasmania and the Northern Territory. The Committee would be grateful if the Government would continue to provide up-to-date information on the manner in which the Convention is applied in practice, including statistical data on the size of the fishing sector and the number of children and young persons employed on fishing vessels, as well as information on the results of the inspections carried out by the labour inspection services.

Furthermore, the Committee notes with interest the Government’s statement that consideration is given to the possibility of ratifying the Minimum Age Convention, 1973 (No. 138), in the course of 2011–12. It recalls, in this regard, that Article 10(4)(e) of Convention No. 138 provides that the ratification of that Convention by a member who is a party to Convention No. 112 involves under certain conditions the immediate denunciation of the latter Convention. The Committee requests the Government to keep the Office informed of any progress made in this regard.

Finally, the Committee wishes to draw the Government’s attention to the Work in Fishing Convention, 2007 (No. 188), which revises in an integrated manner most of the existing ILO fishing instruments. In particular, Article 9 of Convention No. 188 raises the minimum age for work on board a fishing vessel from 15 to 16 years, provides that the competent authority may authorize a minimum age of 15 for person who are no longer subject to compulsory schooling and who are engaged in vocational training in fishing, and prohibits the night work of fishers under the age of 18. The Committee invites the Government to give favourable consideration to the ratification of Convention No. 188 and to keep the Office informed of any decision taken in this regard.