Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Minimum Age Convention, 1973 (No. 138) - Benin (Ratification: 2001)

The Committee notes the information provided by the Government in its first and second reports. It also notes with interest that Benin ratified the Worst Forms of Child Labour Convention, 1999 (No. 182), on 6 November 2001. The Committee notes that the Ministry responsible for labour signed a Memorandum of Understanding in 1987 with ILO/IPEC to combat child labour.

Article 2, paragraphs 1 and 4, of the Convention. 1. Scope of application of the Convention. The Committee notes that section 166 of the Labour Code, read in conjunction with section 2, prohibits work by children under 14 years of age in enterprises when it is performed for and under the direction of an employer. It also notes that the provisions of the Labour Code and the texts issued thereunder are not intended to be applied to labour relations in the informal economy, except where the parties so desire. However, the Committee observes that, according to an activities report on the IPEC-Benin project for the abolition of child labour in Benin of July 2003, the informal economy is in full expansion. Indeed, the informal economy accounts for nine-tenths of non-agricultural workers. The Committee also notes that, according to the survey report on children working in the cities of Cotonou, Porto-Novo and Parakou of 1999, the total number of working children between the ages of 5 and 14 in Benin was 485,000 in 1999. According to the same report, young workers are principally active in the following sectors: artisanal activities (three-quarters of boys); informal trading; popular street food outlets; domestic work; and minor street jobs (hawkers and washing cars or motorcycles). The Committee reminds the Government that the Convention covers all forms of employment or work, including own-account work. The Committee requests the Government to indicate the measures adopted or envisaged to extend the application of the Convention to work performed outside an employment relationship or in the informal economy.

2. Minimum age for admission to employment or work. Minimum age for admission to domestic work. The Committee notes the Government’s indications that the minimum age of 14 years for admission to employment applies to all sectors of activity, including domestic work. It also notes that the Government specified in the declaration appended to its ratification a minimum of 14 years for admission to employment or work. However, the Committee observes that section 1(2) of Order No. 026 of 14 April 1998 provides that intermittent personnel engage for a short period not exceeding 20 hours a week are not covered by the Order and are only subject to the stipulations of the parties. It also notes that section 166 of the Labour Code respecting the minimum for admission to work only applies to work carried out in an enterprise. The Committee accordingly notes that no text explicitly sets a minimum age for admission to employment of 14 years for household employees. Moreover, the Committee notes the Government’s indication in its report to the Committee on the Rights of the Child (CRC/C/3/Add.52, 4 July 1997, paragraphs 216-219), that it has been shown in a study that, out of 100,000 children in domestic works ("vidomégons"), 92 per cent are under 14 years of age (or which 20 per cent are under 10 years old) and 85 per cent are girls. The Committee also notes that the national IPEC-Benin programme plans research on domestic work by children. The Committee reminds the Government that Article 2 of the Convention is applicable to domestic work, including work performed by intermittent workers, and that the minimum age for admission to this activity must not be under 14 years, except for activities considered to be light work. The Committee therefore requests the Government to indicate the measures adopted or envisaged to explicitly set out in the national legislation a minimum age of 14 years for admission to domestic work. It also asks the Government to provide copies of research reports on domestic work by children.

Minimum age for admission to the merchant navy and sea fishing. The Committee notes that workers in the merchant navy and sea fishing are explicitly excluded from the scope of application of the Labour Code (section 2(2)). It also notes that section 7 of Act No. 98-015 issuing the general conditions of service of seafarers, of 12 May 1998, provides that the authorization of the parents or representative (legal guardian) is required for the recruitment of a seafarer under the age envisaged by the law. The Committee requests the Government to provide information on the age referred to in section 7 of Act No. 98-015 of 12 May 1998 issuing the general conditions of service of seafarers.

Article 2, paragraph 3. Age of completion of compulsory schooling. The Committee notes that article 13 of the Constitution provides that primary education is compulsory. It notes the Government’s indication in its report that the duration of primary education is six years and that it begins at the age of 5 for children who have been through nursery school and the age of 6 for others. The Committee requests the Government to provide copies of the texts setting out the organization of the school system and the age of completion of compulsory schooling.

The Committee notes the Government’s indication in its report to the Committee on the Rights of the Child that the obligation to attend school has been statutory since 1975, but has remained a pious hope (CRC/C/3/Add.52, 4 July 1997, paragraph 183). The Committee also notes that, according to the IPEC activities report of July 2003 on the project to abolish child labour in Benin, the gross school attendance rate has changed substantially over the past decade. From 60 per cent in 1992, it rose to 76 per cent in 1999 and 94 per cent in 2002. The gross rate of school attendance by girls rose from 43 per cent to 61 per cent over the same period. The net school attendance rate has also undergone constant improvement, rising from 48 per cent in 1992 to 63 per cent in 1998. The Committee also observes that the proportion of the state budget devoted to education, even though it still remains inadequate, has continued to rise. From 15 per cent in 1997, it is now 21 per cent. Nevertheless, the Committee notes that the ratio of pupils to teachers has deteriorated, falling from 40 in 1992 to 55 in 2001. The same progression can be seen for the literacy of persons aged over 15 years, which fell from 36.3 per cent in 1996 to 35.9 per cent in 2001. The Committee also notes that Circular No. 3532/MEN/CAB/DAPS/SA was adopted on 1 October 1993 to facilitate the access of girls to basic education. Under this Circular, girls are fully exempted from the payment of tuition fees in rural areas and benefit from a 50 per cent exemption in all secondary education establishments (CRC/C/3/Add.52, 4 July 1997, paragraph 50). The Committee encourages the Government to pursue its efforts in the field of education and to continue supplying information on developments in this situation in practice.

Article 3, paragraph 2. Determination of hazardous types of work. The Committee notes the Government’s indications that Inter-Ministerial Order No. 132 of 2000, issued under section 168 of the Labour Code, establishes the nature of the work and the categories of enterprises prohibited for women, pregnant women and young persons, and the age limit to which the prohibition applies. It notes that, under the terms of section 4 of Order No. 132 of 2000, a young worker is a person aged between 14 and 18 years. The Committee notes that the following types of work are prohibited for young workers under 18 years of age: (a) the transport of loads exceeding 40 kg by handcart (section 5(1)); (b) the transport of loads exceeding 130 kg on two-wheeled handcarts (section 5(3)); (c) transport on barrows or hand-trucks (section 5(4)); (d) work requiring the operator to walk on transmissions, mechanisms and machines incorporating moving parts for the purposes of monitoring or verification and maintenance operations, such as cleaning, polishing and greasing (section 12(1)); (e) the use of chisels or cutting machines other than those powered only by the operator (section 13(2)); (f) the driving of agricultural or forestry tractors not provided with guards against turning over and combine harvesters (section 14); (g) work relating to the maintenance and surveillance of pressurized vessels (section 17) or electrical installations (section 20); (h) work carried out at a height unless the aptitude of the young worker for such work has been medically certified (section 19); (i) the manufacture, handling or processing of certain hazardous substances (section 21); and (j) work underground in mines and quarries (sections 19 and 23). The Committee requests the Government to provide information on the consultations held with the organizations of workers and employers concerned for the determination of hazardous types of work, in accordance with Article 3, paragraph 2, of the Convention.

Article 3, paragraph 3. Admission of young persons to hazardous types of work from the age of 16 years. The Committee notes that, under the terms of Inter-Ministerial Order No. 132 of 2000, young workers over 16 years of age may be engaged in the following types of work: operating vertical wheels, winches or pulleys for the lifting of loads (section 15(1)); non-continuous work on machines operated by pedals and work in so-called "hand" occupations and presses of any nature operated by hand by the operator (section 15(2)); the operation of mowers and single-axle self-propelled vehicles in agricultural establishments and farms (section 16(1)); work in wells, gas ducts, chimneys, vats, tanks, cisterns, ditches and galleries, and the pruning of trees (section 16(2)); operators in charge of machinery for the production, storage or use of compressed, liquefied or dissolved gases (section 18); and operator in charge of vats, tanks, carboys or bottles containing inflammable, toxic, noxious or corrosive liquids, gases or vapours (section 18). It notes that a general protection measure is contained in section 3 of the Order providing that any person responsible for an establishment or enterprise shall ensure that the work entrusted to a young worker is commensurate with her or his strength. It also observes that, under the terms of section 169 of the Labour Code, the labour inspector may require the examination of young workers by an approved doctor with a view to ascertaining whether the work with which they are entrusted does not exceed their strength. A young worker may not be maintained in work which is recognized as being beyond her or his strength and must be assigned to suitable work. The Committee however notes that no precise conditions are set forth to guarantee the health, safety and morals of young persons carrying out hazardous types of work.

The Committee therefore reminds the Government that, by virtue of Article 3, paragraph 3, of the Convention, young persons as from the age of 16 years may be authorized to undertake hazardous types of work on condition that their health, safety and morals are fully protected and that they have received adequate specific instruction in the relevant branch of activity. The Committee requests the Government to take the necessary measures to ensure that young persons as from the age of 16 years who carry out hazardous types of work have received adequate instruction in the relevant branch of activity and that their health, safety and morals are protected.

Article 6. Apprenticeship. The Committee notes that, under the terms of section 66 of the Labour Code, no one may be apprenticed unless they have reached the age of 14 years. It also notes the Government’s indication in its report that the minimum age for participation in competitions to enter industrial technical education and training establishments is 14 years. In agricultural training institutions, the minimum age for participation in entry competitions is 15 years. These ages are specified in each competition notice issued by the minister responsible for technical and vocational education. However, the Committee notes that, according to the Government’s indications in its report, children under 14 years of age are in apprenticeship in the informal economy, particularly in the artisanal informal economy. The Government states that supervision needs to be strengthened in this sector. The Committee also notes that, according to the report of the programme of action of the pluridisciplinary health team on child labour in the informal economy in Cotonou (March 1999), 72 per cent of apprentices were aged between 6 and 13 years in 1999 and that they were the victims of many industrial accidents (62 per cent of them). The report indicates that nearly one-half of these children are not paid and work all week, without having acceptable conditions of work. The Committee requests the Government to provide information on the measures adopted or envisaged to ensure compliance in practice with the legislative provisions prohibiting the recruitment of children under 14 years of age as apprentices, including in the informal economy.

Article 7, paragraphs 1 and 4. Admission to light work. The Committee notes from the Government’s report that the national legislation does not take into account the exceptions envisaged in this Article. However, the Committee observes that Order No. 371 of 26 August 1987 derogates from the minimum age for admission to employment of young persons. Under section 1 of the Order, a young person aged between 12 and 14 years may be employed in domestic work and light work of a temporary or seasonal nature. The Committee notes that, when ratifying the Convention, the Government specified a minimum age of 14 years for admission to employment or work, in accordance with Article 2, paragraph 4, of the Convention. The Committee notes that a child aged 12 years has to obtain the explicit authorization of her or his parents or guardians to be able to work (section 3). This authorization may be withdrawn at any time by the competent labour services where it is proven that a child of under 14 years of age is assigned to work that is not commensurate with her or his strength (section 4). The Committee also notes that, under section 2 of Order No. 371 of 26 August 1987, no derogation from the minimum age for admission to employment may be granted if it is likely to be in violation of the legal provisions in force respecting compulsory schooling. The Committee further notes that light work is prohibited at night (that is, between 8 p.m. and 8 a.m.), on Sundays and public holidays, and may not exceed four-and-a-half hours a day.

The Committee reminds the Government that, under the terms of Article 7, paragraphs 1 and 4, of the Convention, national laws or regulations may permit the employment or work of persons 12 to 14 years of age on light work, provided that it 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 requests the Government to indicate the measures adopted or envisaged to ensure that domestic work performed by young persons aged between 12 and 14 years is not prejudicial to their health or development. The Committee also requests the Government to indicate the manner in which the school attendance of children working four-and-a-half hours a day is ensured.

Article 7, paragraph 3 Determination of light work. The Committee notes that Order No. 371 of 26 August 1987 authorizes, by derogation, the employment of young persons aged between 12 and 14 years in domestic work and light work of a temporary or seasonal nature. The Committee reminds the Government that, under Article 7, paragraph 3, of the Convention, the competent authority shall determine the activities which constitute light work. The Committee therefore requests the Government to indicate the measures adopted or envisaged to determine the activities in which employment or work may be permitted for persons aged 12 years. The Committee also requests the Government to provide a definition and examples of "light work of a temporary or seasonal nature" and the types of domestic work which may be performed by children aged between 12 and 14 years.

Article 8. Artistic performances. The Committee notes that, according to the information provided by the Government in its reports, the exception allowed by this provision of the Convention has not been used. While noting the absence of legislative provisions authorizing the participation of children under the general minimum age of 14 years in artistic performances, the Committee draws the Government’s attention to the possibility afforded by Article 8 of the Convention of the establishment of a system of permits in individual cases for children who have not reached the general minimum age for admission to employment for such purposes as participation in artistic performances, if such activities are carried out in practice. The Committee requests the Government to indicate whether children under 14 years of age in practice participate in artistic performances.

Article 9, paragraph 1. Penalties. The Committee notes that persons violating the provisions of the Labour Code or the Orders respecting the employment of children are liable, under sections 298 to 308 of the Labour Code, to a fine and a sentence of imprisonment. The Committee also notes that, according to the survey report on child labour in the cities of Cotonou, Porto-Novo and Parakou, some 485,000 children aged between 5 and 14 years worked in Benin in 1999. Around 10 per cent of these children are aged between 5 and 9 years. The Committee therefore requests the Government to indicate whether these violations of the legislation respecting child labour have been reported, and if so, whether penalties have been applied.

Parts III and V of the report form. The Committee notes that, under the terms of section 169 of the Labour Code and section 25 of Order No. 132 of 2000 establishing the nature of the types of work and categories of enterprises which are prohibited for young persons, labour inspectors may require the examination of young workers by an approved doctor with a view to ascertaining whether the work entrusted to them exceeds their strength. It also notes that, under section 274 of the Labour Code, labour inspectors decide upon their schedule and investigations at their own initiative. They may therefore enter freely and without prior notice at any hour of the day or night workplaces or enterprises liable to inspection by the competent labour services. Labour inspectors may also undertake any examination or inquiry which they consider necessary to satisfy themselves that the legal provisions are being strictly observed. They may also interrogate the employer or the staff and require the production of any document the keeping of which is prescribed by law. The Committee also notes that, under section 266 of the Labour Code, the labour administration has to draw up and publish an annual report of the activities of the inspection services under its control. Furthermore, the Committee notes that, according to the activity report of the national IPEC-Benin project, of July 2003, the labour inspectorate encounters many difficulties in intervening in the informal economy in which most child labour occurs. The Committee requests the Government to provide a copy of the annual report of the labour inspectorate. It also requests the Government to indicate the measures adopted or envisaged to strengthen the action of labour inspectors, particularly in the informal economy.

The Committee notes that, according to the Government’s report, no overall study has yet been made on the employment of children and young persons. The Committee nevertheless notes that the report of the survey on children working in the cities of Cotonou, Porto-Novo and Parakou undertaken by UNICEF provides figures on the magnitude of child labour in these three cities. It further notes that the action programme of the pluridisciplinary occupational health team for children in the informal economy in Cotonou, of March 1999, provides data on the number and frequency of work-related accidents occurring amongst apprentices, their age, occupation and job. The Committee therefore encourages the Government to undertake itself, or to seek international assistance to carry out other surveys throughout the territory with a view to establishing, for example, the number of working children, their age, occupations, the number of hours worked and the remuneration received. The Committee is seriously concerned over the situation of children under 14 years of age who are compelled to work. It strongly encourages the Government to renew its efforts to progressive improve the situation.

The Committee requests the Government to continue providing information on the manner in which the Convention is applied in practice, including, for example, extracts from reports and information on the number and nature of the contraventions reported.