Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

Convention (n° 138) sur l'âge minimum, 1973 - Mongolie (Ratification: 2002)

The Committee notes the Government’s first and second reports and requests the Government to provide information on the following points.

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour. The Committee notes that in 2002 the Government approved a National Programme of Action for the Development and Protection of Children for 2002-2010. It notes that particular attention has been given to the issue of child labour in this document and that one of its objectives is to amend national legislation to ensure the protection of children. The Committee also notes that in 1999 the Government signed a Memorandum of Understanding on Cooperation with ILO/IPEC and as a result an IPEC National Programme in Mongolia started in October 1999. According to the latest Technical Progress Report (TPR) for the IPEC Programmes (Technical Progress Report, National Programme for the Prevention and Elimination of Child Labour in Mongolia, Phase II, 23 March 2003, page 2), "a number of laws that are crucial to address child labour such as the Labour Law and the Child Rights Protection Law are planned to be reviewed by the Mongolian Parliament in the near future". It notes as well that the Parliament and the Ministry of Social Welfare and Labour of Mongolia requested the ILO to provide technical assistance on the proposed amendments to those laws and, as a response to this request, such assistance was recently provided by the ILO Subregional Office in Bangkok. The Committee requests the Government to inform it of any developments regarding the review and possible amendments to the Labour Code and the Law on the Protection of the Rights of the Child in order to better address the problem of child labour. In this respect, the Committee encourages the Government to take into account its comments and the technical advice from the Office.

Article 2, paragraph 1. Scope of application. The Committee notes that the Labour Code, according to its section 4, covers relations governed by a labour contract, defined as a mutual agreement on work for pay between an employee and an employer (section 3(1)(3)). Section 21(1) of the Labour Code stipulates that issues such as the name of the position, amount of salary and working conditions shall be agreed on in a labour contract. If such basic conditions are not fulfilled, the labour contract shall not be considered as established (section 21(3)). The Labour Code therefore appears to exclude work performed outside the framework of a labour contract and self-employment from its scope of application. In this regard the Committee notes the Government’s information that, according to the survey conducted by the Mongolian Employers’ Federation in 2003, 54.3 per cent of employers involved in the survey had been employing children without an employment contract. The Committee reminds the Government that the Convention applies to all branches of economic activity and that it covers every kind of employment or work, including work performed by children and young persons in the absence of a contractual employment relationship. In this regard, the Committee requests the Government to provide information on the manner in which protection is given to children carrying out an economic activity that is not covered by a labour contract, such as work on their own account, or in situations where a valid labour contract has not been established.

Article 2, paragraph 3. Age of completion of compulsory education. The Committee notes that according to section 109(2) of the Labour Code a person of the age of 15 years may enter into a labour contract with the permission of parents or guardians. The Committee notes however that, according to National Programme for the Prevention and Elimination of Child Labour in Mongolia (Phase II, ILO/IPEC Multi-bilateral Programme of Technical Cooperation of 9 April 2002, page 8), the new Educational Law and the Law on Primary and Secondary Education were adopted on 3 May 2002. According to the new Education Law, the duration of compulsory education is shifted from eight to nine years of schooling (five years is for primary education) and the age of enrolling children into primary education is lowered to 7 years. Hence, children would complete compulsory schooling at the age of 16. The Committee also notes that the Government has indicated in its report to the Committee on the Rights of the Child (CRC/C/65/Add.32 of 15 November 2004, page 19) that "the Law on Education provides that a child shall be provided a compulsory basic education up to 17 years of age". The Committee observes that the minimum age of 15 years specified by the Government seems to be lower than the age of completion of compulsory schooling. The Committee recalls that pursuant to Article 2(3) of the Convention, the minimum age for admission to employment (currently 15 years) should not be lower that the age of completion of compulsory schooling. The Committee also considers that compulsory schooling is one of the most effective means of combating child labour. If the age of admission to employment and the age limit for compulsory education do not coincide, a number of problems may arise. For example, if the age of completion of compulsory education is higher than the minimum age for admission to work or employment, children who are required to attend school are at the same time legally competent to work and may be tempted to abandon their studies (see ILO: Minimum age, General Survey of the Reports relating to Convention No. 138 and Recommendation No. 146 concerning Minimum age, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 4(B)), ILC, 67th Session, Geneva, 1981, paragraph 140). The Committee therefore requests the Government to indicate the actual age of completion of compulsory education and to supply a copy of the Law on Primary and Secondary Education, as adopted on 3 May 2002.

The Committee notes that, according to National Programme for the Prevention and Elimination of Child Labour in Mongolia (Phase II, ILO/IPEC Multi-bilateral Programme of Technical Cooperation of 9 April 2002, page 9), since the mid-1990s, school enrolment has been gradually improving and the school drop-out rate has reversed. The net enrolment rate for primary education has increased to 93.8 per cent. However, as indicated in this document, "The enrolment rate decreases as grades increase. There are about 68,000 children of compulsory school age who did not attend school. This is about 13.5 per cent of the total number of children in this age group." The Committee also notes that, according to the Human Rights and Freedoms in Mongolia Status Report issued in 2003 by the National Human Rights Commission of Mongolia (page 7), "there is an increasing tendency among herders to take out their children from schools due to high need of labour at the family farm". According to the survey conducted in four aimags (provinces) by the Social Development Centre within the ILO funded IPEC project, among 291 children working at home as herders, 53.8 per cent had reported to having run away from schools and 8.3 per cent of them never attended schools. The Committee is concerned by the large numbers of children who do not attend or who drop out of school before the age of completion of compulsory schooling. It accordingly requests the Government to indicate the measures taken or envisaged to increase school attendance and to reduce school drop-outs, so as to prevent the engagement of these children in child labour.

Article 3, paragraph 1. Minimum age for admission to hazardous work. The Committee notes that section 7(6) of the Law on the Protection of the Rights of the Child prohibits individuals, economic entities and organizations from employing children under the age of 18 years in work that is likely to be exploitative or harmful to the child’s health and morals. It also observes that, by virtue of sections 109(4) and 141(1)(6) of the Labour Code, it is prohibited to employ a minor under 18 years of age in a job which would negatively affect his/her intellectual development and health. Moreover, section 110(3) of the Labour Code prohibits the employment of minors in a job with abnormal or special conditions. The Committee takes due note of this information.

Article 3, paragraph 2. Determination of types of hazardous work. The Committee notes that, according to section 109(5) of the Labour Code, the member of the Government responsible for the labour matters shall establish a list of jobs in which a minor may not be employed. It also notes that the Minister of Health and Social Welfare issued Order No. A/204 of 1999 specifying a list of 340 types of work covering 17 workplaces prohibited to minors under Appendix 2. It notes as well that, according to section 110(4) of the Labour Code, it is prohibited to require a minor to lift or carry heavier loads than the load prescribed by the member of the Government in charge of the labour issues. The Committee therefore requests the Government to communicate any regulation adopted pursuant to section 110(4) of the Labour Code concerning the prohibition on minors from lifting or carrying excess loads.

Article 6. Vocational training and apprenticeship. The Committee notes that section 109(3) of the Labour Code allows children from the age of 14 years to enter into a labour contract for the purpose of vocational guidance and work experience, if the parents or guardians and the state administrative organ in charge of labour issues have issued their consent. It also notes that, according to the National Programme for the Prevention and Elimination of Child Labour in Mongolia (Phase II, ILO/IPEC Multi-bilateral Programme of Technical Cooperation of 9 April 2002, page 14), a Law on Vocational Education and Training was adopted in May 2002 defining the roles and responsibilities of the Government, management of the vocational education and training and social partnership. The Committee therefore asks the Government to provide information on the practical application of section 109(3) of the Labour Code, in particular on the system of vocational and technical education and on conditions prescribed by the relevant competent authorities for any work done by children and young persons authorized as part of vocational or technical education. Finally, the Committee asks the Government to supply copies of laws or decrees on vocational training and apprenticeship including the Law on Vocational Education and Training adopted in May 2002.

Article 7. Light work. The Committee notes that the Government’s report contains no information regarding permissible light work for young persons aged 13 to 15, and persons who are at least 15 but have not yet completed their compulsory education. It also notes that the Labour Code contains no provisions in this respect. The Committee nonetheless observes that, according to a national survey conducted by the National Statistical Office in 2000, quite a number of children under the specified minimum age for admission to employment are economically active in some way or another. The Committee recalls that Article 7, paragraph 1, of the Convention provides that national laws or regulations may permit persons from the age of 13 to engage in light work, which is: (a) not likely to be harmful to their health or development; and (b) not such as to prejudice their attendance at school, their participation in vocational orientation or training programmes approved by the competent authority or their capacity to benefit from the instruction received. The Committee also recalls that according to Article 7, paragraph 3, of the Convention, the competent authority shall determine what is light work and shall prescribe the number of hours during which, and the conditions in which such employment or work may be undertaken. The Committee accordingly requests the Government to indicate the measures taken or envisaged in respect of provisions to determine light work activities and the conditions in which such employment or work could be undertaken by young persons of 13 years or more.

Article 8. Artistic performances. The Committee notes that the Government’s report contains no information on the existence of any system of granting permits for participation of children in artistic performances. It notes however that section 7(6) of the Law on the Protection of the Rights of the Child, inter alia, prohibits individuals, economic entities and organizations to "conduct profit making activities on their behalf illegally". Section 25(6) continues by stating that individuals and officials using a child in press and commercial advertising without the consent of the child or his/her parents, guardians, care-givers and conducting profit-oriented activities illegally using the name of the child will face a penalty of 20,000 to 30,000 tughriks with confiscation of their income and profit. The Committee recalls that, according to Article 8 of the Convention, the competent authority may, by permits granted in individual cases, allow exceptions to the prohibition of employment under the general minimum age, for such purposes as participation in artistic performances. Permits so granted shall limit the number of hours during which and prescribe the conditions in which employment or work is allowed. The Committee therefore requests the Government to indicate whether in practice children under the age of 15 years participate in artistic performances and, if so, to provide information on provisions of the national legislation which determine conditions of such work.

Article 9, paragraph 1. Penalties. The Committee notes that, according to section 141(1)(6) of the Labour Code, if an employer forces minors to do work prohibited to them, or to lift or carry loads exceeding the prescribed limits, or has required employees under 18 years age to work in a workplace that adversely affects their health and mental development, or in abnormal working conditions, or compels them to work overtime or during public holidays or weekends, the state labour inspector shall impose a fine on that officer of 15,000 to 30,000 tughriks. It also notes that section 25(5) of the Law on the Protection of the Rights of the Child provides for penalties for engaging a child in hazardous work stating "individuals forcing the child to beg and officials engaging the child in a work harmful for his/her health will face a penalty of 10,000 to 20,000 tughriks". The Committee asks the Government to provide information on the practical application of the abovementioned provisions.

Article 9, paragraph 3. Registers of employment. The Committee notes the absence of information in the Government’s report on the obligation of an employer to keep and make available the registers of persons under the age of 18 whom he/she employs. It also notes that the national legislation does not appear to contain such provisions. The Committee reminds the Government that, in accordance with Article 9, paragraph 3, of the Convention, national laws or regulations or the competent authority shall prescribe the registers or other documents which shall be kept and made available by the employer containing the names and ages or dates of birth, duly certified, wherever possible, of persons whom he/she employs or who work for him/her and who are less than 18 years of age. The Committee therefore requests the Government to indicate in which manner it ensures or envisages to ensure that that employers shall keep and make available registers, which contain the names and ages or dates of birth, duly certified whenever possible, of persons under the age of 18 years employed or working for the employer.

Part III of the report form. The Committee notes that, according to section 139 of the Labour Code, the national monitoring of the enforcement of the Labour Code is entrusted to: (i) the State Great Khural (Parliament); (iii) the Cabinet and Governors at all levels; and (iii) organizations in charge of labour issues which are authorized to enforce the monitoring of the labour law, as well as other organizations or officials authorized by the law, within their respective jurisdictions. At the district level (aimag - or image - which is divided into sums - or soums) the local Governor and its monitoring offices will implement the labour monitoring. The Labour Code also leaves a role of public monitoring of the enforcement of labour to the organizations representing and protecting the rights and legal interests of employees, non-governmental organizations, and the public (section 139(3)). The Committee also notes that the labour monitoring procedure is regulated by the rule of the state labour inspection, which in its turn is approved by Cabinet (sections 140(2) and 140(3) of the Labour Code). It notes that, according to the National Programme for the Prevention and Elimination of Child Labour in Mongolia (Phase II, ILO/IPEC Multi-bilateral Programme of Technical Cooperation of 9 April 2002, page 28), the Rule of the State Labour Inspection was approved in 1999 by Government resolution No. 122. The Committee requests the Government to provide further information on the functioning and working of the labour inspectorate and the labour monitoring procedure. It also asks the Government to supply a copy of Government resolution No. 122.

Part V of the report form. Application of the Convention in practice. The Committee notes the Government’s information that the study "Children and development", conducted by the National Statistical Office in 2000, revealed that 1.4 per cent of children between 5 and 14 years of age were engaged in paid work. According to the statistics of the Ministry of Education and Science, 13.1 per cent or about 70,000 children aged 8-15 were not covered by compulsory schooling and the majority of them work or participate in various types of income generating activities. The Committee requests the Government to continue providing information on the situation of child labour in Mongolia and, in particular to supply copies or extracts from official documents of inspection services. The Committee also asks the Government to provide information on the number and nature of the contraventions reported and penalties imposed.