Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Minimum Age Convention, 1973 (No. 138) - Madagascar (Ratification: 2000)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes that the Parliament of Madagascar is currently examining a draft Labour Code which has been commented upon by the Office. It hopes that the draft Labour Code will take into account the Office’s comments, as well as those made below. The Committee requests the Government to provide a copy of the Code once it has been adopted.

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour. The Committee notes the information provided by the Government and observes that it is taking various measures to abolish child labour. The Committee also notes that the Government has formulated, with the collaboration of ILO/IPEC, a National Plan of Action on Child Labour in Madagascar. In its second periodic report submitted to the Committee on the Rights of the Child in February 2001 (CRC/C/70/Add.18, paragraphs 1157-1159), the Government indicates that the National Plan of Action covers the following strategic aspects: poverty and rural underdevelopment; improvement of the educational and training systems; social protection; and awareness-raising and training. Furthermore, six sectoral plans have been developed covering: rural child workers (agriculture, livestock, sylviculture, fishing); extractive industries; manufacturing industries (metalworking, garages, wood, brick-making, construction); children in domestic service; children working in catering and trade; and children engaged in miscellaneous activities. The Government adds that, to coordinate the various programmes, a National Steering Committee (CDM) has been established and brings together ministerial departments and NGOs. Its role is to coordinate and approve the various national programmes of action on child labour covering a minimum of three years. The Committee requests the Government to provide information on the impact of the National Plan of Action and the sectoral plans referred to above on the abolition of child labour in practice.

The Government also indicates that it signed a Memorandum of Understanding (MOU) with ILO/IPEC in June 1998. In the context of this MOU, the Government has established, with the technical assistance of ILO/IPEC, the "Institutional support programme for the abolition of child labour in Madagascar". This programme envisages: bringing the various actors together in the context of national seminars to analyse and identify needs, especially in relation to the legal framework; the creation of synergy around interdisciplinary awareness of the negative effects of early work on the health and normal development of children; the formulation of texts relating to the various fields of child labour; strengthening the capacities of the actors through training; and achieving coherence between texts and actions relating to child labour. The Government indicates that this programme of action is intended to have a lasting effect through the formulation and adoption of a full and harmonized legal basis respecting child labour which takes into account international standards and abolishes abusive practices, the establishment of supervisory machinery and the definition of the responsibilities of each actor. The Committee requests the Government to provide information on the implementation of the "Institutional support programme for the abolition of child labour in Madagascar and the results achieved".

Article 2, paragraph 1. 1. Scope of application. The Committee notes that, under the terms of section 1, the Labour Code applies to all workers whose contract of employment, whatever its form, is executed in Madagascar. The Committee notes that under the terms of this provision the Labour Code only applies to an employment relationship. The Committee reminds the Government that the Convention applies to all branches of economic activity and covers all types of employment or work, whether or not they are carried out on the basis of an employment relationship and whether or not they are paid. The Committee requests the Government to provide information on the manner in which children who are not bound by an employment relationship, such as those who work on their own account, benefit from the protection envisaged in the Convention.

2. Minimum age for admission to employment or work. The Committee notes that, when ratifying the Convention, Madagascar specified a minimum age for admission to employment or work of 15 years. The Committee also notes that section 1 of the Labour Code provides that it is prohibited to employ young persons under 14 years of age, even as family helps. It also notes that, under the terms of section 100 of the Labour Code, children cannot be employed in any enterprise, even as apprentices, before the age of 14 years without the authorization of the labour inspector, taking into account local circumstances and the work which may be required of them, and on condition that the work is not harmful to their health or normal development. The Committee notes that these provisions of the Labour Code establish a minimum age for admission to employment or work which is lower than that specified when ratifying the Convention. However, the Committee notes that section 98(1) of the draft Labour Code sets the statutory age for admission to employment at 15 years, in conformity with the age specified when ratifying the Convention. The Committee trusts that this draft Labour Code, which sets the minimum age for admission to employment or work at 15 years, will soon be adopted.

Article 2, paragraph 3. Age of completion of compulsory schooling. The Committee notes that, under the terms of article 23 of the Constitution of the Republic of Madagascar, every child has the right to instruction and to education under the responsibility of the parents, with respect to their freedom of choice. Under article 24 of the Constitution, the State undertakes to organize public education, free and accessible to all. Primary education is compulsory for all. According to the information provided by the Government in its report under Convention No. 33, Order No. 3949/87 raised the age of completion of compulsory schooling from 14 to 16 years. However, the Committee notes that, according to a document providing basic data for Madagascar, published by the UNESCO International Bureau of Education, primary education is compulsory and consists of five years of schooling. The official age at which it commences is 6 years. Secondary schooling is composed of two cycles, the first for four years and the second for three years. Secondary schooling does not appear to be compulsory. The Committee notes that, according to the UNESCO data, the age of completion of compulsory schooling is lower than the minimum age for admission to employment or work. Indeed, if the official age for the commencement of primary schooling is 6 and its compulsory duration is five years, the age of completion of compulsory education would accordingly be 11 years. The Committee recalls that the requirement set out in Article 2, paragraph 3, of the Convention is met in so far as the minimum age for work, namely 15 years in Madagascar, is not less than the age of completion of compulsory schooling. However, it considers it desirable that the age of completion of compulsory schooling should be the same as the minimum age for admission to employment or work, in accordance with Paragraph 4 of Recommendation No. 146, in order to avoid a period of enforced inactivity. The Committee requests the Government to indicate the age of completion of compulsory schooling and to provide a copy of Order No. 3949/87.

Article 3. 1. Age of admission to hazardous work. The Committee notes that under section 1 of Decree No. 62-152 of 28 March 1962, establishing the working conditions of children, women and pregnant women, issued under section 94 of the Labour Code, children of either sex aged under 18 years may not be employed in work that exceeds their strength, is liable to be hazardous or which, by its nature and the circumstances in which it is performed, is likely to jeopardize their morals. However, section 13 of Decree No. 62-152, which provides that children may not perform work using circular or bandsaws, allows for a derogation, with written authorization granted after an investigation, which may be revoked by the inspector of labour and labour laws, for children over 15 years of age who may be allowed to perform work using bandsaws. Furthermore, section 14 of Decree No. 62-152, which provides that in sheet glass factories and other glass works, children aged under 18 years of age may not be engaged in glass handling, blowing or drawing, also allows for a derogation, with written authorization issued following an investigation and which may be revoked by the inspector of labour and labour laws, without however specifying the age of the young person. The Committee reminds the Government that, under the terms of Article 3, paragraph 1, of the Convention, the minimum age for admission to hazardous work, that is any type of employment or work which by its nature or by 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 take the necessary measures to ensure that no person under 18 years of age, except in accordance with the exceptions permitted by the Convention, is authorized to perform types of hazardous work, in accordance with Article 3, paragraph 1.

2. Determination of types of hazardous employment or work. The Committee notes that Decree No. 62-152 of 28 March 1962 establishing the conditions of work of children, women and pregnant women contains a list of types of work prohibited for young persons under 18 years of age. In addition to certain precise provisions concerning the types of activities that are prohibited, the Decree contains two schedules. Schedule A has two parts, the first of which solely concerns young persons and the second relating to young persons and women. Under section 18 of Decree No. 62-152, children are prohibited from having access to premises in which the types of work mentioned in Schedule A are carried out. Schedule B contains a list of establishments in which the employment of young persons under 18 years of age is authorized under certain conditions. The Committee notes that this Order was adopted nearly 50 years ago. It draws the Government’s attention to Paragraph 10(2) of the Minimum Age Recommendation, 1973 (No. 146), which calls for the periodic re-examination and revision of the list of the types of employment or work covered by Article 3 of the Convention, as necessary, particularly in the light of advancing scientific and technical knowledge.

3. Authorization to employ young persons from the age of 16 years. The Committee notes that Decree No. 62-152 of 28 March 1962 establishing the conditions of work of children, women and pregnant women, permits the employment of young persons from the age of 16 years in types of hazardous work. Hence, section 12 of Decree No. 62-152, which provides that young persons may not be engaged in work involving the use of mechanical chisels and other cutting blades, or presses of any nature other than those which are hand-operated, allows for a derogation for young persons aged over 16 years, with a written authorization issued following an investigation which may be revoked by the inspector of labour and labour laws. Section 13, which provides that children may not be engaged in work involving circular or bandsaws, also allows for a derogation, with written authorization issued after an investigation and which may be revoked by the inspector of labour and labour laws, for young persons aged over 16 years, who may be allowed to perform work involving circular saws. Section 16 prohibits the employment of children under 16 years in: (1) the operation of vertical wheels, winches and pulleys; (2) the operation of steam valves; (3) work performed on mobile platforms; (4) in public performances given in theatres, cinemas, cafés or circuses involving hazardous feats of strength or contortion; and (5) as doublers for rolling mills in workplaces where wire rods are laminated and drawn out. Furthermore, under section 19 of Decree No. 62-152, child labour in the workplaces enumerated in Schedule B is only authorized under the conditions set out in the Schedule. It is accordingly permitted to employ young persons over 16 years of age under specific conditions in 11 establishments and children of 17 years of age, also subject to certain conditions, in one establishment.

The Committee reminds the Government that, under the terms of Article 3, paragraph 3, of the Convention, national laws or regulations may, after consultation with the organizations of employers and workers concerned, authorize the performance of types of hazardous work by young persons between 16 and 18 years of age, on condition that the health, safety and morals of the young persons concerned are fully protected and that they have received adequate specific instruction or vocational training in the relevant branch of activity. It also recalls that this provision of the Convention consists of a limited exception to the general rule of the prohibition placed upon young persons under 18 years of age of performing types of hazardous work, and not a total authorization for the performance of types of hazardous work from the age of 16 years. The Committee therefore requests the Government to provide information on the measures adopted to ensure that the performance of types of hazardous work by young persons between 16 and 18 years of age is only authorized in accordance with the provisions of Article 3, paragraph 3, of the Convention.

Article 6. 1. Vocational training. The Committee notes that section 124 of the Labour Code provides that vocational training is a right for all workers. Section 125 of the Labour Code provides that the State, local communities, public establishments, public and private educational establishments, associations, occupational organizations and enterprises shall collaborate in providing vocational training under conditions set out in specific regulations. The Committee requests the Government to provide information on the application in practice of the vocational training system.

2. Apprenticeship. The Committee notes that section 100 of the Labour Code prohibits the employment of young persons under 14 years of age, even as apprentices, except with the authorization of the labour inspectorate, taking into account local circumstances, the work which may be required of them and on condition that the work is not prejudicial to their health and their normal development. Section 127 of the Labour Code provides that a decree issued following advice from the National Employment Council shall establish the basic conditions, the form and effects of apprenticeship contracts. However, the Committee notes that no decree issuing regulations governing apprenticeship contracts appears to have been adopted. It reminds the Government that, under the terms of Article 6, the Convention does not apply to work done by young persons at least 14 years of age in enterprises, 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 enterprise which has been approved by the competent authority; or (c) a programme of orientation designed to facilitate the choice of an occupation or of a line of training. The Committee requests the Government to provide information in its next report on the rules applicable to apprenticeship in Madagascar, the conditions of work of apprentices in practice and the consultations held with the organizations of employers and workers concerned. Furthermore, the Committee requests the Government to indicate whether authorizations for work have been granted by the labour inspectorate for apprentices under 14 years of age.

Article 7. Light work. The Committee notes that the Government does not provide any information on the application of this provision. Nevertheless, section 100 of the Labour Code prohibits the employment of young persons under 14 years of age, except with an authorization from the labour inspectorate, taking into account local circumstances, the work which may be required of them and on condition that the work is not prejudicial to their health or normal development. The Committee reminds the Government that, under the terms of Article 7, paragraph 1, of the Convention, national laws or regulations may permit the employment of persons 13 to 15 years of age on light work, on condition that the work is not likely to be harmful to their health or development and that it is 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. Furthermore, under Article 7, paragraph 3, of the Convention, the competent authority shall determine the activities in which employment or work may be permitted and shall prescribe the number of hours during which and the conditions in which such employment or work may be undertaken. The Committee notes that section 100 of the Labour Code allows daily work by persons under the minimum age specified when ratifying the Convention under certain conditions, whereas paragraphs 1 and 3 of Article 7 authorize the employment of persons 13 to 15 years of age on light work. The Committee requests the Government to take the necessary measures to ensure in its legislation that the work performed by children under 15 years of age is only authorized in the exceptional case of light work as from 13 years of age, in accordance with Article 7, paragraph 1, of the Convention. It also requests the Government to indicate the activities in which light work may be authorized and to provide information on the conditions of work prescribed, particularly with regard to the hours of work and conditions of employment and work.

Article 8. Artistic performances. The Committee notes that the Government does not provide any information on the application of this provision. However, it notes that under section 16(4) of Decree No. 62-152 of 28 March 1962 establishing the working conditions of children, women and pregnant women, young persons under 16 years of age may not be engaged in public performances given in theatres, cinemas, cafés or circuses involving the performance of hazardous feats of strength or contortion. The Committee reminds the Government that Article 8 of the Convention provides for the possibility of granting, in derogation of the minimum age for admission to employment of work, and after consultation of the organizations of employers and workers concerned, permits in individual cases for participation in activities such as artistic performances. Permits so granted must place limits on the number of hours during which and prescribe the conditions in which such employment or work is allowed. The Committee requests the Government to provide information on the application of section 16(4) of Decree No. 62-152 of 28 March 1962 establishing the working conditions of children, women and pregnant women, particularly with regard to the procedure for the authorization of such work, the number of hours for which such work is authorized and the conditions of work.

Parts III and V of the report form. Supervision and application of the Convention in practice. With reference to the comments that it made in 2003 in relation to the Labour Inspection Convention, 1947 (No. 81), and the Labour Inspection (Agriculture) Convention, 1969 (No. 129), the Committee notes that the Government has launched various activities to raise awareness of child labour in the context of ILO/IPEC. It notes in particular the measures to train labour inspectors in this field and the implementation by the ministries responsible for labour and justice, in collaboration with ILO/IPEC, of a programme to strengthen the institutions concerned. Furthermore, as a survey carried out under the ILO/IPEC project showed that child labour is as significant in rural as in urban areas, labour inspectors throughout the territory received training in May 2000 to improve their capacities for the inspection of child labour. The Committee notes that this training raised their awareness of the prejudicial effects of child labour and helped them to determine the action to be taken with a view to improving inspection and eliminating the phenomenon.

The Committee also notes that in its second periodic report to the Committee on the Rights of the Child in February 2001 (CRC/C/70/Add.18, paragraphs 1126, 1139, 1144 and 1147 to 1153), the Government indicated that as a result of the socio-economic crises throughout the world, child labour continues to increase, especially in developing countries. Madagascar is no exception and has seen an increase in the number of children, ever younger, working in various sectors, in contravention of labour legislation and regulations. It adds that most working children, whether in urban, suburban or rural areas, are in the informal economy. A study entitled "Child labour in Madagascar: An evaluation" was carried out by UNICEF in June 1997 at the request of ILO/IPEC. It was intended to shed light on the main determinants of child labour and its impact on schooling. The study was carried out by multidisciplinary teams comprising three people (a labour inspector, a doctor and a representative of an NGO dealing with children in difficulties) constituted in each of the six provinces of Madagascar. In the context of these surveys, some 2,649 interviews were carried out of children working in the following sectors: agriculture, livestock, forestry and fishing (33.3 per cent); mining, precious stones, quarries (11.6 per cent); food industries, wood, textiles, brick-making (17.5 per cent); domestic service (13 per cent); and trade and services (24 per cent). The Committee notes that these surveys were able to determine the nature and scope of child labour in the country. The distribution of working children by age is: 1.5 per cent of children under 7 years of age; 13 per cent of those between 7 and 9 years; 38 per cent of 10- to 12-year-olds; and 48.2 per cent of 13- and 14-year-olds. The distribution of child workers by sex is 62 per cent of boys and 38 per cent of girls. The branches of activity in which children work (in ascending order of importance) are: agriculture, domestic service, extractive industries (quarries, salt works), miscellaneous manufacturing industries, livestock, transport and storekeeping, trading (fixed vendors), casual street employment (peddlers, vendors, cleaners, door attendants), fishing (small-scale traditional), metalworking (garages), forestry, marginal activities and catering. In its concluding observations in October 2003 (CRC/C/15/Add.218, paragraphs 59 and 60), the Committee on the Rights of the Child, while noting with appreciation the adoption of the National Plan of Action on child labour and the ongoing programme with ILO/IPEC, expressed deep concern at the fact that child labour in the country is still widespread, in particular in the informal economy, including domestic work, and that children may be working long hours at young ages and in difficult conditions, which has a negative effect on their development and school attendance. The Committee on the Rights of the Child recommended, inter alia, increasing the number of labour inspectors and providing them with adequate resources, paying particular attention to the issue of domestic work and continued collaboration with ILO/IPEC.

The Committee likewise expresses its deep concern at the actual situation of very young children in Madagascar who are compelled to work. It therefore strongly encourages the Government to renew its efforts to improve this situation progressively. The Committee also requests the Government to provide precise information on the manner in which the Convention is applied in practice including, for example, statistical data on the employment of children and young persons by age group, extracts of the reports of inspection services and information on the number and nature of contraventions reported.