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

Minimum Age Convention, 1973 (No. 138) - Viet Nam (Ratification: 2003)

The Committee notes the Government’s first report and requests it to provide further information on the following points.

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour. The Committee notes the Government’s information that the policy and methods used by Viet Nam to eliminate child labour include: issuing legal documents and policies; promoting inspection and supervision, administrative and criminal sanctions; legal advocacy and education and public awareness enhancement. The Committee also notes that the Government adopted in 2001 a National Programme of Action for Children for the period 2001-10 with the overall objective to create the optimum conditions to fully meet the needs and basic rights of children, prevent and push back the dangers of harming children, build a safe and healthy environment for Vietnamese children to have the opportunity to be protected, cared for, educated and develop in all fields and have an ever-better life. The Committee asks the Government to provide information on progress achieved under this programme of action.

Article 2, paragraph 1. 1. Scope of application. The Committee notes that the Labour Code of 1994 (as amended in 2002), pursuant to its section 2, applies to all workers and organizations or individuals utilizing labour on the basis of a labour contract in any sector of the economy and in any form of ownership. This Code also applies to trade apprentices, domestic servants and other forms of labour. The Committee also notes that under section 6 of the Labour Code, an employee shall be a person of at least 15 years of age who is able to work and has entered into a labour contract. In this regard, the Committee recalls that the Convention requires the fixing of a minimum age for all types of work or employment and not only for work under an employment contract. The Committee requests the Government to provide information on the manner in which the protection afforded by the Convention is guaranteed to children carrying out an economic activity that is not covered by a labour contract, such as self-employment.

2. Minimum age for admission to employment or work. The Committee notes that pursuant to sections 6 and 120 of the Labour Code, the employment of persons under the age of 15 years is prohibited, which is in conformity with the minimum age of 15 specified by the Government at the time of ratification. The Committee takes due note of this information.

Article 2, paragraph 3. Compulsory schooling. The Committee notes that according to article 59 of the Constitution of Viet Nam, education is a right and obligation of citizens, and elementary education is mandatory and free. It also notes that under section 16 of the Law on Protection, Care and Education of Children, children have the right to study, and education at the primary level is free. The Committee further notes the Government’s statement that the minimum-age provisions are relevant to the socio-economic conditions of Viet Nam and the mental and physical development of Vietnamese children and also to the compulsory primary school age. The Government also refers to the newly adopted Law on Education of 2005. The Committee requests the Government to indicate the age of completion of compulsory schooling in Viet Nam. It also asks the Government to supply a copy of the Law on Education of 2005.

Article 3, paragraph 1. Minimum age for admission to hazardous work. The Committee notes that, according to section 121(1) of the Labour Code, employers shall employ junior workers (defined in section 119 as workers under the age of 18) only in jobs that are suitable to their health so as to ensure the proper development and growth of their body, mind and personality. Section 121(2) further provides that it is prohibited to employ junior workers in heavy or dangerous work, or work requiring contact with toxic substances, or work or workplaces that have adverse effects on their personality. The Committee takes due note of this information.

Article 3, paragraph 2. Determination of hazardous work. The Committee notes that under section 122(1) of the Labour Code, the normal working hours of a junior worker shall not exceed seven hours per day or 42 hours per week. The Committee also notes that Inter-Ministerial Order No. 9/TT/LB of 13 April 1995 provides for a list of 81 occupations prohibited for young workers under the age of 18. In particular, it notes that the employment of young persons is prohibited in the following working conditions: heavy work (average energy consumption is over 5 Kcal/minute and average heart beat is over 120 per minute); work in uncomfortable positions or in places lacking oxygen; direct exposure to chemicals that may cause gene damage, adverse affect on cell metabolism, bad effects on reproductive functions, cancer as well as occupational diseases; work in contact with harmful elements that may cause infectious diseases; work in contact with radioactive substances; work in contact with electromagnetic fields and vibrations; work in workplaces having the temperature over 45ºC in the summer and 40ºC in the winter; work in workplaces with high or low atmospheric pressure; work in mines; work in high and sheer workplaces; work in workplaces unsuitable for the young worker’s mental state and psychology; work in workplaces that may have bad effects on the development of the young worker’s personality. The Committee takes due note of this information.

Article 3, paragraph 3. Admission to types of hazardous work from the age of 16 years The Committee notes that the Labour Code does not have any specific provision that would allow hazardous work to be performed by persons from the age of 16. However, it notes that according to section 7(7) of the Law on Protection, Care and Education of Children of 2004, it is strictly prohibited to abuse child labour, employ children for heavy or dangerous jobs, jobs in exposure to noxious substances or other jobs. The term "children" is defined in section 1 of this law as Vietnamese citizens aged under 16 years. The Committee reminds the Government that, under Article 3, paragraph 3, of the Convention, young persons from the age of 16 years may be authorized to carry out types of hazardous work on condition that their health, safety and morals are fully protected and that they have received adequate specific instruction or vocational training in the relevant branch of activity. The Committee requests the Government to indicate whether young persons aged 16 to 18 are allowed to perform certain types of hazardous work and, if so, to provide information on the conditions of such work.

Article 5. Limitation of the scope of application of the Convention. The Committee notes that at the time of ratification the Government limited the scope of application of the Convention to the mining industries; manufacturing industries; construction and public works; gas and water supply; sanitary service; transportation; storage and communication; plantations and other industrial undertakings mainly producing for commercial purposes. In this respect, the Government indicates that the process of ratification of Convention No. 138 was preceded by consultations with the Viet Nam General Confederation and the Viet Nam Chamber of Commerce and Industry. The Committee also notes that pursuant to section 120 of the Labour Code, the employment of persons under the age of 15 is prohibited, except in a number of trades and occupations stipulated by the Ministry of Labour, War Invalids and Social Affairs, which is considered light work. The Committee further notes the Government’s statement that the provisions of the Labour Code in general and regulations on the minimum age for admission to employment in particular cover all undertakings, including family and small-scale holdings employing less than ten employees. Thus, although the scope of the Convention is limited, the national legislation of Viet Nam is of general coverage and does not exclude any branches of economic activity. In this regard, the Committee draws the Government’s attention to the possibility offered by Article 5, paragraph 4(b), of the Convention under which any Member which has limited the scope of application of this Convention may at any time formally extend the scope of application by a declaration addressed to the Director-General of the ILO. The Committee asks the Government to provide information on any developments in this regard.

Article 6. Apprenticeship and vocational training. The Committee notes the Government’s statement that the minimum age provisions do not apply to general educational and vocational training or technical institutions. It also notes that, according to section 22 of the Labour Code, students at a trade training centre must be at least 13 years of age, except in the case of trades in respect of which the Ministry of Labour, War Invalids and Social Affairs determines otherwise, and must be sufficiently healthy to satisfy the requirements of the trade. In this regard, the Committee reminds the Government that by virtue of Article 6 of the Convention, only work done by persons of at least 14 years of age within the context of a programme of training or vocational guidance in enterprises is excluded from the scope of this Convention. It asks the Government to provide information on the measures taken or envisaged to set the minimum age of 14 years for entry into apprenticeship, as required by Article 6 of the Convention. The Committee also requests the Government to provide information on the conditions prescribed by competent authority, after consultations with the organization of workers and employers concerned, which govern the work in vocational and training institutions.

Article 7. Light work. The Committee notes that, according to Circular No. 21/1999/TT-BLDTBXH on Employing Children Not Yet Fifteen Years of Age, issued by the Ministry of Labour, War Invalids and Social Affairs in 1999, the following occupations are permitted for children under the age of 15 years: actors: dancers, singers, theatre performers, movie actors etc.; traditional crafts: glazing pottery, sawing oyster shells, painting lacquers; fine arts handicrafts: lace-making, fine arts carpentry; potential athletes: gymnastics, swimming, athletics etc.

Part II of this Circular stipulates, inter alia, that the children must be a full 12 years of age; the working environment must not adversely affect the health and psycho-physiology of the child; working time must not exceed four hours in a day or 24 hours in a week; and the availability of schooling time for the child must be secured.

The Committee also notes the Government’s statement that, although Viet Nam has not made any use of Article 2, paragraph 4, of the Convention, it has made use of Article 7, paragraph 4, of the Convention that specifies the substitution of the ages 12 for 13 for light work. This is due to the fact that Viet Nam embraces a variety of traditional handicraft sectors where light work by children of 12 years of age is permissible. In this regard, the Committee reminds the Government that the Convention allows only those countries which by reasons of insufficient economic and educational facilities have initially declared 14 years as the minimum age, in accordance with Article 2, paragraph 4, to resort to the provisions under Article 7, paragraph 4, whereby the minimum age for light work may be 12 years. Since the Government specified 15 years as the minimum age for employment, the Committee requests the Government to take the necessary measures to ensure that no children under 13 years of age are employed in light work.

Article 8. Artistic performances. The Committee notes that pursuant to section 136 of the Labour Code, persons who work in special jobs within the artistic field shall be entitled to certain regimes with respect to, inter alia, working hours, rest breaks, wages and occupational safety and hygiene. It also notes that Circular on Employing Children Not Yet Fifteen Years of Age provides for a list of occupations, including artistic performances, permitted to children under 15 years of age. According to Part II of this Circular, children participating in artistic performances must be a full of 8 years of age. Special cases requiring the participation of children under the age of 8 shall be decided by the Ministry of Culture and Information. Part III of the Circular states that it is the responsibility of the employers to register with the local Department of Labour, Invalids and Social Affairs the employment of children under 15 years at their enterprises or business production establishments. The Committee also notes the Government’s statement that issuing work permits and registering with the competent authority before recruiting serve the same purpose, though different in methods of implementation.

The Committee recalls that, according to Article 8 of the Convention, the competent authority may, by permits granted in individual cases, allow exceptions to the prohibition of employment under the general minimum age, for such purposes as participation in artistic performances. Permits so granted shall limit the number of hours during which and prescribe the conditions in which employment or work is allowed. The Committee requests the Government to provide further information on the procedure of registering children under the age of 15 with the competent authority, and, in particular, on prescribing the number of hours and the conditions of their employment.

Article 9, paragraph 1. Penalties. The Committee notes that under the terms of section 192 of the Labour Code, breaches of the provisions of this Code shall, depending on the seriousness of the breach, be dealt with in the following ways: warning, fine, suspension or withdrawal of licences, compulsory payment of compensation, or compulsory cessation of business operations, or criminal prosecution in accordance with the provisions of the law. It also notes that according to section 228 of the Penal Code, any person who employs children to perform jobs which are heavy, dangerous, or in contact with hazardous substances, as indicated in the list of prohibited activities for persons under the age of 18, or who have already been administratively punished for this offence but continue to perform it, shall be subject to a fine of between 5 million and 50 million dong, non-custodial reform for up to two years or a term of imprisonment for three months to two years. The Committee takes due note of this information.

Article 9, paragraph 3. Registers of employment. The Committee notes that, according to section 119 of the Labour Code, enterprises which employ junior workers (under the age of 18 years) must establish separate records containing their full names, dates of birth, current employment positions, and regular health reports, and must produce these records upon request by a labour inspector. Similarly Part D of Inter-Ministerial Order No. 9/TT/LB of 13 April 1995 and Part III of Circular No. 21/1999/TT-BLDTBXH require the employers to keep records with all the details as mentioned above of the children and young persons employed. The Committee takes due note of this information.

Part V of the report form. Application of the Convention in practice. The Committee notes the Government’s statement that, according to the current statistics figures released by the Labour Inspectorate of the Ministry of Labour, Invalids and Social Affairs, no use of child labour has been identified in enterprises in Viet Nam. However, the Committee notes that, according to the information from UNICEF, a significant number of children in Viet Nam begin working at a very young age; by the time they turn 15, the majority are doing the work of adults. A recent Government study estimates that there are approximately 2.3 million children in Viet Nam who are working rather than going to school. A large percentage of these children are believed to be in hazardous or excessively severe work. The Committee also notes that the Committee on the Rights of the Child in its concluding observations (CRC/C/15/Add.200, 18 March 2003, paragraph 51) expressed its concern over the widespread incidence of economic exploitation of children in the agricultural sector as well as in gold mines, timber operations, the service sector and other private sector enterprises. The Committee further notes that ILO/IPEC initiated in 2002 a project titled "National Programme for the Prevention and Elimination of Child Labour in Viet Nam" with the objectives to strengthen the capacity of the governmental agencies, including the Ministry of Labour, Invalids and Social Affairs to plan, initiate, implement, monitor, evaluate and report on action to combat child labour; and to protect and withdraw a selected number of children working in exploitative and hazardous conditions; and also to prevent some at risk children and their families from starting work.

The Committee expresses its deep concern at the number of children working in Viet Nam, and, in particular, performing hazardous types of work. It strongly encourages the Government to redouble its efforts to progressively improve the situation and to provide detailed information on concrete measures taken in this regard. The Committee also requests the Government to provide detailed information on the application of the Convention in practice, including statistical data on the employment of children and young persons, extracts from the reports of inspection services as well as the number and nature of the contraventions reported and penalties imposed.