Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Convention (n° 138) sur l'âge minimum, 1973 - Malawi (Ratification: 1999)

Article 2, paragraph 1, of the Convention. 1. Scope of application. In its previous comments, the Committee had noted that, according to various provisions of the Employment Act No. 6 of 2000 (Employment Act), in particular section 3, which defines the term “employee”, this Act is applicable only where there is an employment contract or labour relationship. The Committee had observed that section 3 of this Act, which defines the term “workplace” as “any premises in which, or within, the close or curtilage or precincts of which, one or more persons are employed”, and section 4, which provides that this Act shall apply to all workplaces as defined in section 3, do not cover self-employment. The Committee had noted the Government’s indication that it will consult with all stakeholders to solicit their views for a possible review of the laws. The Committee had recalled that the Convention covers all types of employment or work, whether under a labour relationship or contract of employment or not, including work done on a self-employed basis.

The Committee notes the Government’s information that the social partners and other stakeholders have discussed the issue of extending the coverage of the Employment Act to self-employed workers, including children. However, the Government indicates that the social partners were unclear as to how the Employment Act could be applied to self-employed children, particularly to those who work on family farms or accompany their parents to work as tenants. The Committee draws the Government’s attention to the fact that, in addition to modifying the Employment Act to include its application to self-employed workers, other alternatives may also be envisaged to ensure that self-employed children benefit from the protection of the Convention, such as elaborating legislation specifically to ensure children’s rights or strengthening the action of the labour inspectorate to sectors of the economy where children are often self-employed, such as the commercial agricultural sector in which according to the summary outline for the ILO/IPEC programme on the elimination of child labour in Mzimba, 52.6 per cent of child labourers are found. In this regard, the Committee notes that, according to the summary outline for the ILO/IPEC action programme entitled “Employers’ Fight Against Child Labour in the Tobacco Sector” of 2007, there has been no progress made in the past ten years in the adoption of the Tenancy Bill, which includes provisions that could help in eliminating child labour from the tobacco sector by providing for the inspection of estates as often and thoroughly as necessary and which establishes a minimum age for employment in the sector. The Committee notes that the ILO/IPEC action programme targets policy-makers in the tobacco sector and the Government, so as to advocate the development of policies that would have a direct impact on the elimination of child labour in the tobacco sector. The Committee urges the Government to take measures to ensure that the Tenancy Bill is adopted in the near future. It hopes that, in adopting the Tenancy Bill, the labour inspection component concerning children working in the commercial agricultural sector on their own account will be strengthened. It requests the Government to redouble 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, and requests it to take any other measure to contribute to that goal.

2. Minimum age for admission to employment or work. In its previous comments under Article 7 of the Convention, the Committee had noted the Government’s indication that the occupations or activities in which children below 14 years can be employed to do light work are determined by law. The Committee had reminded the Government that light work is authorized only for children of “at least 12 years of age”. It had therefore requested the Government to take the necessary measures to ensure that a minimum age for admission to light work would be set at 12 years and that children between 12 and 14 years would only be engaged in light work activities. The Committee notes the Government’s information that consultations were undertaken and social partners felt that the current law which prohibits work for children under 14 years of age is superior to the minimum standards on light work set by the Convention. Therefore, the social partners have agreed to maintain the current law in Malawi.

However, the Committee notes that, according to the Malawi National Child Labour Survey conducted by the National Statistics Office in 2002 and carried out within the framework of the Statistical Information and Monitoring Programme (SIMPOC) of ILO/IPEC, 23.3 per cent of all children aged 5 to 14 work in Malawi. Furthermore, 77.9 per cent of children of the same age group are involved in household chores. The Committee further notes that, according to the Preliminary Report of the Malawi Multiple Indicator Cluster Survey of 2006, 30.4 per cent of the total number of child labourers is made up of children aged 5 to 11 years, and 24.6 per cent are aged 12 to 14 years. The Committee therefore observes that, although national legislation prohibits children under 14 years from working, an important number of children aged under 14 years work in Malawi. Consequently, it reminds the Government that, under Article 2, paragraph 1, of the Convention, no person under the specified minimum age, namely 14 years for Malawi, may be admitted to employment or work in any occupation, subject to certain provisions of the Convention. Taking account of these statistics, the Committee requests the Government to take the necessary measures to ensure that no person under 14 years of age is admitted to employment or work.

Article 3, paragraph 1. Minimum age for admission to hazardous work. In its previous comments, the Committee noted a discrepancy between article 23 of the country’s Constitution, which provides for protection from dangerous work for children aged below 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 the health, safety, education, morals or development of such persons or prejudicial to their attendance at school or any other vocational or training programme. The Committee took note of the Government’s indications that the Tripartite Labour Advisory Council would discuss the issue in a meeting scheduled to take place in 2005. The Committee requested the Government to communicate the results attained from the discussion of this matter in the Tripartite Labour Advisory Council. The Committee noted the Government’s indication that a tripartite meeting was held from 21 to 22 July 2005. It also noted that, during that meeting, an ILO official working on the ILO’s Improving Labour Systems in Southern Africa project (ILO–ILSSA project) presented a report on an analysis of the national labour legislation of Malawi and it was agreed by all social partners that there was a need to harmonize the provisions of the national laws on the legal age for employment.

The Committee notes the Government’s information that this issue was already presented to the Malawi Law Commission for consideration. It notes that, according to the Report of the Law Commission on the Review of the Constitution (Law Commission Report No. 18 of August 2007), the Commission recommended that the age of the child under article 23 of the Constitution should be raised to 18 years of age. The Committee encourages 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, paragraph 1, of the Convention.

Article 3, paragraph 2. Determination of types of hazardous work. The Committee had 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 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 and 18 years; or (b) prejudicial to their attendance at school or any other vocational or training programme. In this regard, the Government had indicated that it would consult with appropriate organizations of employers and employees on this matter, after the ILO consultative workshop on child labour monitoring and identification of hazardous child labour. The Committee had also noted the Government’s indication that the Ministry conducted consultative workshops in 11 districts in the country. It had noted that a draft list of types of hazardous employment or work was established and was ready to be discussed with stakeholders. The Committee notes the Government’s information that several consultative workshops were held and that the final draft list of types of hazardous work is produced and will be submitted to the Ministry of Justice for further action. The Committee requests the Government to take the necessary measures to ensure that the draft list of types of hazardous employment is adopted in the near future. It requests the Government to provide a copy of this list as soon as it is adopted.

Article 9, paragraph 3. Keeping of registers by employers. The Committee had previously noted that section 23 of the Employment Act lays down that every employer is required to maintain a register of persons aged below 18 years employed by, or working for, him/her. The Committee had also noted that, according to the Government’s report, the applicable parliamentary Act still did not have a model register. The Committee had also noted that, in its communication, the Malawi Trade Union Congress indicated that some estates do not have registers, particularly in commercial agriculture. The Government had indicated 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 easily available at the Government Press or any bookshop. The Committee notes the Government’s information that the registers available at the Government press are general and that employers use different formats. The Government indicates that discussions with the social partners were held and it was resolved to develop standard templates for various legislative prescriptions, including a model for a labour register. In this regard, the Committee reminds the Government that, pursuant to Article 9, paragraph 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 therefore expresses the hope that the model register being presently developed will be in conformity with Article 9, paragraph 3, of the Convention, and requests the Government to supply a copy of the model register as soon as it is adopted. It asks the Government to provide information on the progress made in this regard.

Part III of the report form. Child labour inspection. Following its previous comments, the Committee notes the Government’s information that, with the technical and financial support from ILO/IPEC, training sessions on the enforcement of child labour laws were conducted. In this regard, labour, police, social welfare and judicial officers were trained on the issue of child labour and provided with the necessary skills to enforce laws on employers who engage children illegally.

Part IV of the report form. Court decisions. The Committee takes note of the court decisions supplied by the Government. The three cases pertain to the illegal employment of children under 14 years of age to work in a farm and to work as herd boys, in violation of sections 21(1) and 24 of the Employment Act. The accused were found guilty in all three cases and sentenced to fines and prison terms.