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

Minimum Age Convention, 1973 (No. 138) - Papua New Guinea (Ratification: 2000)

The Committee notes the Government’s first report. It notes with interest that the Government ratified the Worst Forms of Child Labour Convention, 1999 (No. 182), in 2000. The Committee requests the Government to provide further information on the following points.

Article 1 of the Convention. The Committee notes the Government’s information that at present Papua New Guinea has not any particular national policy designed to ensure the effective abolition of child labour. It notes that the Government applies the provisions of the existing labour legislation for monitoring the required minimum age for admission to employment and for other related purposes. However, under the ILO Country Programme for Papua New Guinea entitled: "Structural adjustment at minimum social cost" (SAMSC), Sector 1, a child labour force survey is planned to be conducted in collaboration with UNICEF and the Papua New Guinea Department of Labour and Employment for 2004-05, in order to assess the situation of child labour in the country and to take practical measures to combat the issue. Moreover, the Government has elaborated a National Plan of Action, according to which children shall be: (1) nurtured in a safe environment; (2) educated with life skills; (3) physically, mentally, socially and spiritually healthy; (4) informed to take life choices; (5) allowed freedom of expression and association; (6) protected from all forms of exploitation; (7) provided with all basic services. The Committee asks the Government to provide information on the abovementioned projects and the results attained and on the national policy measures designed to effectively reduce and eliminate child labour.

Article 2, paragraph 1. Minimum age for admission to employment or work. The Committee notes that, at the time of ratification, the Government of Papua New Guinea declared 16 years to be the minimum age for admission to employment or work within its territory. It notes that, according to section 18 of the Employment Act, 1978 (hereinafter Employment Act), any person of 16 years or more may enter into a written contract of service. Moreover, by virtue of section 103(1), no person under the age of 16 years shall be employed. The Committee notes, however, that section 103(4) provides that a child of 14 or 15 may be employed during school hours if the employer is satisfied that the child is no longer attending school. The Committee notes that with regard to the minimum age for employment on board ships, section 6 of the Minimum Age (Sea) Act, 1972, provides that a person who engages another person who is under 18 years of age for service at sea in any capacity without a written certificate by a controller (marine services) that he is satisfied that the other person has attained 15 years of age, is guilty of an offence. By virtue of section 7 of the same Act, a child below 15 years, but not below 14 years may be engaged for service at sea with the written approval of the director of education, if he is satisfied having due regard to the health of the child, that the engagement will be for his immediate and future benefit. The Committee notes that, by virtue of sections 6 and 7 of the Minimum Age (Sea) Act, the minimum age to perform work on board ships is 15 and 14 years respectively. It reminds the Government that, by virtue of Article 2, paragraph 1, of the Convention, no one under the age specified upon ratification shall be admitted to employment or work in any occupation. The Committee requests the Government to indicate the measures taken or envisaged to amend section 103(1) of the Employment Act and sections 6 and 7 of the Minimum Age (Sea) Act, so as to ensure that no person under 16 years of age shall be admitted to employment or work in any occupation.

Article 2, paragraph 3. Compulsory education. The Committee notes the information contained in the Government’s report to the Committee on the Rights of the Child (CRC/C/28/Add.20), that education is neither universal nor compulsory in Papua New Guinea, and that the law does not specify a legal age for entering school or an age at which children are permitted to leave school. The Committee also notes that in its concluding observations (CRC/C/15/Add.229; paragraphs 53, 54), the Committee on the Rights of the Child expressed concern that the age for admission to school and the age of completion of schooling are not fixed in Papua New Guinea, and recommended the state party to fix the minimum age for admission to school and the age of completion of schooling. The Committee considers the requirement of Article 2(3) of the Convention fulfilled since the minimum age for employment is not less than the age of the completion of compulsory education. The Committee is nevertheless of the opinion that compulsory education is one of the most effective means of combating child labour and that it is important to emphasize the necessity of linking the age of admission to employment to the age limit for compulsory education. If the two ages do not coincide, various problems may arise. If compulsory schooling comes to an end before young persons are legally entitled to work, there may be an enforced period of idleness (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 considers it desirable to ensure compulsory education up to the minimum age for employment, as provided under Paragraph 4 of Recommendation No. 146. It hopes, therefore, that the Government will indicate any development in this regard.

Article 3, paragraphs 1 and 3. Minimum age for admission to hazardous work. The Committee notes that section 104 of the Employment Act states that no person under 16 years of age shall be employed in any employment, or in any place, or under working conditions, that are injurious or likely to be injurious to the health of the person. The Committee also notes that, by virtue of section 105 of the Employment Act, a person under 16 years of age shall not be employed during the night between 6 p.m. and 6 a.m. The Committee notes that, according to section 23 of the Mining (Safety) Act, the employment of children below the age of 16 years in any mine is prohibited. Moreover, under section 79 of the Child Welfare Act, a person who causes or permits a child under 16 years of age to take part in a public exhibition or performance; or any preparation, training or rehearsal for a public exhibition or performance which would endanger the child’s life or limb, is guilty of an offence. The Committee notes that it may be deduced from these provisions that the age of admission to hazardous work is 16 years. It 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. It therefore requests the Government to take the necessary measures so that the national legislation provides that no person under 18 years of age may perform types of hazardous work.

The Committee also reminds the Government that Article 3, paragraph 3, of the Convention authorizes, under strict conditions respecting protection and prior training, the employment or work of young persons between the ages of 16 and 18. It also recalls that this provision of the Convention constitutes a limited exception to the general rule of the prohibition upon young persons under 18 years of age from performing types of hazardous work, and not a global authorization of the performance of hazardous work from the age of 16 years. The Committee therefore requests the Government to take the necessary measures to ensure that the performance of types of hazardous work by young persons between 16 and 18 years of age is only authorized in conformity with the provisions of Article 3, paragraph 3, of the Convention.

Article 3, paragraph 2. Determination of hazardous work. The Committee notes that, while section 104 of the Employment Act prohibits the employment of a young person under 16 years of age in any employment or in any place or under working conditions that are injurious or likely to be injurious to the health of the person, the national legislation does not contain a determination of the types of hazardous work pursuant to section 104. However, it notes that section 1 of the Employment Act defines "heavy labour" to mean employment: (a) as a quarryman; (b) as a diver; (c) as a fisher for pearl shell or any sea products other than fish; (d) in the loading or unloading of any ship’s cargo; (e) in mining or carrying; (f) in pit-sawing, logging or sawing; (g) in any kind of work declared to be heavy labour by the minister. The Committee reminds the Government that, under the terms of Article 3, paragraph 2, of the Convention, the types of hazardous employment or work shall be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned. The Committee considers that a general prohibition of dangerous work, without additional measures, is unlikely to have much practical effect. If the types of employment or work, which are too dangerous for young persons to perform are not designated specifically, there is usually no way for a young person to be prohibited from performing a particular dangerous job (see the General Survey of the Committee of Experts of 1981, paragraph 225). 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. 4. Exclusion of limited categories of employment or work. The Committee notes the information provided by the Government in its report that section 103(3)(d) of the Employment Act stipulates that, as an exception to the provision fixing the minimum age for employment or work, a person who is between 11 and 16 years of age may be employed in undertakings in which only members of his family are employed (subject to the conditions of subsections (2) and (3)). The Government also mentions other provisions of the Employment Act which make an exception for young persons employed in family undertakings. The Committee notes that section 6 of the Minimum Age (Sea) Act, 1972, fixing the minimum age for working on board ships, does not apply, according to subsection (2), to service in a vessel on which only members of the same family are employed. The Committee recalls that, by virtue of Article 4, paragraph 1, of the Convention, the competent authority, after consultation with the organizations of employers and workers concerned, where such exist, may exclude from the application of this Convention limited categories of employment or work in respect of which special and substantial problems of applications arise. Paragraph 2 further provides that each Member which ratifies this Convention shall list in its first report on the application of the Convention submitted under article 22 of the Constitution of the International Labour Organization any categories which may have been excluded in pursuance of paragraph 1 of this Article, giving the reasons of such exclusion, and shall state in subsequent reports the position of its law and practice in respect of the categories excluded and the extent to which effect has been given or is proposed to be given to the Convention in respect of such categories. Consequently, the Committee asks the Government to state, in its next report, the position of its law and practice in respect of children working in family undertakings, as well as the extent to which effect has been given or is proposed to be given to the Convention in respect of work done by children in family undertakings. The Committee also asks the Government to provide information on consultations held on this matter with the employers’ and workers’ organizations concerned.

Article 6. Apprenticeship and vocational training. The Committee takes note of the Government’s information on this point. It notes that the Apprenticeship and Trade Testing Act, 1986, and the Apprenticeship and Trade Testing Regulation, 1991, regulate the functioning and conditions of work of apprenticeship. It notes that section 15(3) of the Apprenticeship and Trade Testing Act states that a person shall not enter into a contract of apprenticeship unless he has attained the age or apparent age of 15 years. Section 15(4) states that a person below the age of 15 years may enter into a contract of apprenticeship, with the consent of his parent or guardian, or with the consent of the controller, and such contract remains valid according to its tenure notwithstanding that the person has in the meantime attained the age of 15 years. The Committee notes that under these provisions it is not clear which is the minimum age for apprenticeship. The Committee notes that, according to section 6(2) of the Minimum Age (Sea) Act, the minimum age provisions contained in subsection (1) do not apply to service in a training ship, approved by the superintendent. The Committee reminds the Government that Article 6 of the Convention fixes a minimum age of 14 years for work done in undertakings, where such work is carried out in accordance with conditions prescribed by the competent authority, after consultation with the organizations of employers and workers concerned, where such exist, and is an integral part of: (a) a course of education or training for which a school or training institution is primarily responsible; (b) a programme of training mainly or entirely in an undertaking, which programme has been approved by the competent authority; or (c) a programme of guidance or orientation designed to facilitate the choice of an occupation or of a line of training. The Committee asks the Government to indicate the steps taken or envisaged in order to ensure that no one below the age of 14 years is admitted to apprenticeship. The Committee also asks the Government to indicate what minimum provisions are applicable to training on board ships. Furthermore, it requests the Government to provide information about the vocational and technical education system in Papua New Guinea, including types of institutions, enrolment figures and curricula.

Article 7. Light work. The Committee notes that section 103(2) of the Employment Act states that children between 11 and 16 years are admitted to employment, if the employer obtains a medical certificate of the child’s fitness for that type of employment and the written consent of his parent or guardian, provided that such employment: (a) is not prejudicial to attendance at school; (b) is outside the hours prescribed for attendance at school. Furthermore, subject to the above conditions, a person of 14 or 15 years may be employed in any industry other than an industrial undertaking or the fishing industry (section 103(3)). The Committee also notes that, according to section 103(4), a person of 14 or 15 years may be employed during school hours if the employer is satisfied that the person no longer attends school. The Committee notes the Government’s statement that paragraph 2 of this Article does not apply, as there is no age limit for compulsory schooling. It also notes that the Government seeks ILO technical assistance in order to solve the inconsistency of section 103(2) and (3) with this Article of the Convention, which specifies 13 as the minimum age to perform light work. The Committee encourages the Government to seek the assistance of the Office and asks it to provide information on the measures taken or envisaged to ensure that the minimum age of light work is set at 13 and that persons between the age 13 and 16 years are only engaged in light work activities.

Article 8. Artistic performances. The Committee takes note of the Government’s statement that consultations will take place at the National Tripartite Consultative Council Secretariat (NTCC) to discuss the possibility of exceptions to the prohibition of employment or work for such purposes as participation in artistic performances and the granting of individual permits for each case of participation of a child. The Committee requests the Government to provide information on any developments with regard to envisaged exceptions for artistic performances by children and on the procedure and conditions for granting individual permits for such performances.

Article 9, paragraph 3. Registers of employment. The Committee notes the Government’s information that, for the purpose of enforcement, the national laws or regulations or the competent authority shall prescribe the registers or documents that shall be kept by the employer. However, it notes that the Employment Act does not contain any provision requiring the employer to keep registers and documents of persons employed or working under him. The Committee also notes that section 5 of the Minimum Age (Sea) Act states that a person having command or charge of a vessel must keep a register, which contains particulars such as the full name, date of birth and the terms and conditions of service, of each person under 16 years of age employed on board the vessel. The Committee requests the Government to take the necessary measures to ensure that, in conformity with Article 9, paragraph 3, of the Convention, employers are obliged to keep registers that shall contain 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. With regard to young persons working on board vessels, the Committee asks the Government to indicate the measures taken or envisaged to ensure that the obligation of keeping a register extends to all persons below the age of 18 years.

Part V of the report form. The Committee notes the Government’s statement that there is no statistical data available on the employment of children and young persons. However, it notes the information contained in the initial report to the Committee on the Rights of the Child (CRC/C/28/Add.20) that there is no effective state regulation of the employment of children, especially the labour of children who are informally adopted into the home they call family and made to feel indebted, but are actually trapped into long hours of work, lack of rest and leisure, lack of freedom of mobility and association, and deprived of the right to education and medical treatment. Young girls are particularly vulnerable and, when brought into a household as juvenile babysitters, their role is very often transformed into overworked, unpaid or underpaid, multi-purpose domestic servants. These children are referred to as "adopted". Much of this domestic child labour remains invisible and children have little recourse or redress. The Committee also notes that in its concluding observations (CRC/C/15/Add.229; paragraphs 57 and 58), the Committee on the Rights of the Child expressed its concern at the considerable number of working children, particularly as domestic servants, and recommended the state party to undertake an investigation into the number of children involved in domestic service. The Committee requests the Government to provide information on the manner in which the Convention is applied, including, for example, statistical data on the employment of children and young persons, extracts from the reports of inspection services and information on the number and nature of violations detected involving children and young persons.