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

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

Article 2, paragraph 1, of the Convention. 1. Scope of application. The Committee had previously noted that, according to various provisions of the Employment Act No. 6 of 2000, in particular section 3, which defines the term "employee", the Act is applicable only where there is an employment contract or labour relationship. It had requested the Government to provide additional information indicating the extent to which national legislation gives effect to the Convention in areas not covered by the Employment Act. The Committee notes the Government’s indication that sections 3 and 4 of the Occupational Safety, Health and Welfare Act No. 21 of 1997 are supplementary to the Employment Act. It further notes that section 3 of the Occupational Safety, Health and Welfare Act 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". Moreover, section 4 stipulates that this Act shall apply to all workplaces as defined in section 3. The Committee observes that sections 3 and 4 do not cover self-employment. The Committee recalls 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 therefore requests the Government to indicate the measures taken or envisaged to ensure the application of the Convention to all types of work, including work carried out by persons under 14 years of age who are self-employed.

2. Minimum age for admission to employment or work. The Committee had previously noted that the provisions of section 97 of the Inland Waters Shipping Act No. 12 of 1995 refer to the definition of young persons given in the Children’s and Young Persons’ Act (Chapter 26:03). The Committee had requested the Government to supply a copy of the Children’s and Young Persons’ Act (Chapter 26:03) to enable it to confirm that legislation prohibits access to work or employment for persons aged below 14 years on means of transport registered in the national territory. Noting that the Government has not supplied a copy of the said Act, it once again requests the Government to send a copy of the Children’s and Young Persons’ Act (Chapter 26:03).

Furthermore, the Committee had noted that, according to section 21 of the Employment Act, the prohibition of work for children aged below 14 years does not cover work done "in homes", in technical vocational training or other training institutions. The Committee had requested the Government to clarify the meaning of work done "in homes". The Committee takes note of the Government’s statement that work done "in homes" is work carried out by a child in his/her home as a part of his/her responsibility to assist the parents and also to learn how to keep the home clean.

Article 3, paragraph 1. Minimum age for admission to hazardous work. The Committee had previously noted the provisions of section 22 of the Employment Act, subsection (1) of which prohibits work by or employment of persons aged between 14 and 18 years in a job or occupation likely to be detrimental to their health, safety, education, morals or development, or likely to interfere with school attendance or any vocational or training programme. The Committee had also noted that, according to article 23 of the country’s Constitution, children aged below 16 years have the right to protection from economic exploitation or any treatment, work or punishment that is, or is likely to be hazardous or interfere with their education, or be harmful to their health or to their physical, mental, spiritual or social development. The Committee had further noted that there is a discrepancy between the constitutional provisions, which provide for protection from dangerous work for children aged below 16 years, and the provisions of section 22 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 had requested the Government to harmonize the provisions of the Constitution and the Act in order to ensure that no uncertainty arises as to the requirements of the Convention on this point. The Committee takes note of the Government’s indication that the Tripartite Labour Advisory Council will discuss the issue in a meeting scheduled to take place this year. The Committee reminds the Government that, in accordance with Article 3, paragraph 1, of the Convention, the minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardize the health, safety or morals of young persons shall not be less than 18 years. The Committee requests the Government to communicate, in its next report, the results attained from the discussion of this matter in the Tripartite Labour Advisory Council.

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 age of 14 and 18 years, or (b) prejudicial to their attendance at school or any other vocational or training programme. The Committee takes note of the Government’s indication that it will 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 that will take place in November 2004. The Committee reminds the Government that, under the terms of Article 3, paragraph 2, of the Convention, the types of hazardous employment or work likely to jeopardize the health, safety or morals of adolescents shall be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned. It also draws the Government’s attention to Paragraph 10(1) of the Minimum Age Recommendation, 1973 (No. 146), which provides that in determining the types of hazardous employment or work, full account should be taken of relevant international labour standards, such as those concerning dangerous substances, agents or processes (including ionising radiations), the lifting of heavy weights and underground work. The Committee asks the Government to take the necessary measures to ensure that the types of hazardous work are determined either by the national legislation or the competent authority, in accordance with Article 3, paragraph 2, of the Convention, and to provide information on the consultations held with organizations of employers and workers concerned on this subject.

Article 6. Apprenticeship and vocational training. The Committee had previously noted that section 21(2) of the Employment Act limits the prohibition of employment of children aged below 14 years by allowing work done in technical vocational schools or in other training institutions where this work is approved and supervised by the public authorities, or is part of a school or vocational training programme for which the school or institution is responsible. The Committee had requested the Government to indicate the conditions laid down by the competent authority for any work done by children or adolescents and authorized for the purposes specified in this Article. It had also asked the Government to provide information on consultations that have been held with the organizations of employers and workers concerned. The Committee notes the Government’s indication that it intends to initiate consultations on this subject with its social partners. The Committee accordingly requests the Government to communicate the results attained from those consultations.

Article 7. Light work. The Committee had previously noted the Government’s indication that the occupations or activities in which young people below 14 years can be employed to do light work are determined by law. The Committee reminded the Government that light work is authorized only for children of "at least 12 years of age". Noting the absence of information on this point in the Government’s report, the Committee reminds the Government that, under Article 7, paragraphs 1 and 4, of the Convention, national laws or regulations may permit the employment or work of persons aged 12 to 14 years 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 hours during which, and the conditions in which, such employment or work may be carried out. The Committee therefore once again requests the Government to take the necessary measures to ensure that a minimum age for admission to light work is set at 12 years and that persons between the age of 12 and 14 years are only engaged in light work activities. It also once again asks the Government to provide information on the activities in which, and the working conditions in which, such employment or work may be carried out by persons above 12 years.

Article 8. Artistic performances. The Committee had previously noted that the United Nations Committee on the Rights of the Child (CRC/C/8/Add.43, paragraph 29) refers to a law on censorship and regulation of entertainments. It had asked the Government to supply a copy of the Censorship Act. The Committee notes that the Government has not provided the said Act and it therefore once again asks the Government to send a copy of it with its next report.

Article 9, paragraph 2. Determination of the persons responsible for compliance with the Convention. Referring to its previous comments, the Committee takes note of the Government’s information that, according to section 3(c) of the Employment Act, the employer is the person required to comply with the provisions giving effect to the Convention and who is also liable to sanctions.

Article 9, paragraph 3. Keeping of register by employers. The Committee had previously noted section 23 of the Employment Act, according to which 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 does not have a model register. The Committee notes the Government’s indication that a copy of the model register will be supplied once it is available. The Committee therefore requests the Government to take the necessary measures to ensure that the names and ages or dates of birth are shown in the registers which the employer must maintain, and to supply a copy of a model register as soon as it is available.

Part III of the report form. The Committee had previously noted that the Committee on the Rights of the Child indicates in its report that the labour inspectors, which have been instituted under the law regarding labour legislation (various provisions) are too few in number and often lack the resources needed to carry out inspections on child labour (CRC/C/8/Add.43, paragraph 340, 26 June 2001). The Committee had requested the Government to provide information on this point, and to indicate the methods by which compliance with national law is monitored. The Committee notes the Government’s indication that the application of this Convention is entrusted to the Ministry of Labour and Vocational Training (MoLVT), and that supervision and enforcement is done through labour inspections in compliance with national law. The Committee takes note of this information and asks the Government, with reference to the abovementioned report of the Committee on the Rights of the Child, to supply information on measures taken or envisaged in order to improve the application of the Convention with regard to child labour inspections.

Part V of the report form. Practical application of the Convention. The Committee takes note of the information contained in the MCLS indicating that there were 1.4 million child labourers in Malawi at the time of the survey undertaken in 2002, representing 37 per cent of all children; 52 per cent of child labourers were girls and 48 per cent were boys. The Committee further notes that the majority were children aged between 10 and 14 years, representing 41 per cent of child labourers. The second largest group were children aged between 5 and 9 years, representing 38 per cent of child labourers. The Committee also observes that most child labourers, 52.6 per cent, were engaged in the agricultural sector or in forestry, hunting and fishing. Another large group, 43.2 per cent, comprises children engaged in the community sector and in social and personal services. The Committee requests the Government to continue providing information on the application of the Convention in practice, including, for example, statistics on the employment of children and young persons, extracts from the reports of the inspections services and information on the number and nature of the contraventions reported and sanctions imposed.