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

Minimum Age Convention, 1973 (No. 138) - Namibia (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:

Article 2, paragraph 1, of the Convention. Scope of application. The Committee notes the Government’s statement in its report that, by virtue of section 42 of the Labour Act, no person shall employ children under the age of 14 years for any purpose whatsoever. It also observes that section 1 of the Labour Act defines an "employee" as someone: (a) who is employed by, or working for, any employer and who is receiving, or entitled to receive, any remuneration; or (b) who in any manner assists in the carrying on or the conducting of the business of an employer. Section 2 of the Labour Act further provides that the Act applies "in relation to every employer including the State, and every employee in Namibia". The Act thus appears to limit its scope to persons engaged in an employment relationship, which excludes children or young persons who are self-employed and who do not work for wages. The Committee recalls that the Convention applies to all kinds of work or employment regardless of the existence of a contractual relationship or remuneration. The Committee asks the Government to supply information on the measures taken or envisaged to ensure the application of the Convention to all types of work outside an employment relationship, such as self-employment.

Article 2, paragraph 1. Minimum age for admission to employment or work. The Committee notes that section 42 of the Labour Act prohibits the employment of children under the age of 14 years. However it observes that article 15(3) of the Constitution states that the employment of children under the age of 14 years in any factory or mine is prohibited, save under conditions and circumstances regulated by Act of Parliament. It further notes that the Government specified a minimum age for admission to employment or work of 14 years at the time of ratification, in accordance with Article 2, paragraph 4, of the Convention. The Committee requests the Government to indicate whether an Act of Parliament authorizes the employment of children under 14 years of age in factories or mines and under what conditions.

Article 2, paragraph 3. Compulsory education. The Committee notes the Government’s statement, in its report, that according to article 20 of the Constitution, children shall not be allowed to leave school until they have finished their primary education or have attained the age of 16 years, whichever occurs sooner. The Committee notes from the Namibia Child Activities Survey of 1999 conducted by the Ministry of Labour that children aged 13 to 16 years may not be enrolled in school if they have completed primary education and consider it as terminal. The Committee also notes that according to the statement of the Minister of Basic Education, Sport and Culture on 26 April 2002, a new Education Act (Act No. 16 of 2001) has been adopted. It further notes that the Government specified a minimum age for admission to employment of 14 years at the time of ratification. The Committee reminds the Government that under Article 2, paragraph 3, of the Convention, the minimum age for admission to employment shall not be less than the minimum age of completion of compulsory schooling. It further recalls the importance of linking the age of admission to employment or work to the age limit, where it exists, for compulsory education. If the two ages do not coincide various problems may arise; if schooling ends before young persons may work legally, there may be an enforced period of idleness. In such cases there is a need for the school-leaving age to be raised to the minimum age generally accepted for employment (General Survey by the Committee of Experts on the Application of Conventions and Recommendations, Minimum age, ILC, 67th Session, 1981, paragraph 140). The Committee requests the Government to provide information on the situation of children who are not enrolled in school and who are not therefore obliged to attend school, and to indicate what measures are taken or envisaged to ensure that these children are not admitted to employment or work in any occupation below 14 years of age, which is the minimum age specified by the Government. It also asks the Government to provide a copy of the Education Act of 2001.

Article 3, paragraph 1. Minimum age for admission to hazardous work. The Committee notes that article 15(2) of the Constitution provides that children are entitled to be protected from economic exploitation, and shall not be "employed in or required to perform work that is likely to be hazardous or to interfere with their education, or to be harmful to their health or physical, mental, spiritual, moral, or social development". The Committee observes that the Constitution defines "children" as persons under the age of 16 years. It also observes that the Labour Act does not prohibit the employment of children under 18 years of age in hazardous work. The Committee recalls that, by virtue of 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 and morals of young persons shall not be less than 18 years. The Committee requests the Government to indicate the measures taken or envisaged to ensure that no children under 18 years of age may perform work that is likely to jeopardize their health, safety and morals.

Article 3, paragraph 2. Determination of hazardous work. The Committee notes the absence of any reference in the Labour Act to work or employment that is likely to jeopardize the morals of children. The Committee reminds the Government that, by virtue of Article 3, paragraph 2, of the Convention, the types of work or employment that are likely to jeopardize the health, safety and morals of children shall be determined in the national legislation after consultation with the organizations of employers and workers concerned, where such exist. The Committee asks the Government to indicate the measures taken or envisaged to prohibit work or employment that is likely to harm the morals of children so as to bring the national legislation into line with the Convention.

Article 3, paragraph 3. Admission to hazardous work as from 16 years of age. The Committee observes that section 42(b) of the Labour Act prohibits the employment of children aged 14 to 15 years from working in or on any mine or other work performed with a view to mining or winning, or prospecting for, any minerals as well as in or on any premises where an article or part of an article is made, manufactured, built, assembled, compiled, printed, processed, treated, adapted, repaired, renovated, rebuilt, altered, ornamented, painted, including spray painted, polished, finished, cleaned, dyed, washed, broken up, disassembled, sorted, packed or put into a container, chilled, frozen or stored in cold storage; electricity is generated, transformed or distributed; a building, bridge, dam, canal, road, railway line, street, runway, sewer or water reticulation system or anything similar is built, constructed, maintained, altered, renovated, repaired, demolished or dismantled; or machinery is installed, erected or dismantled (section 42(b)(ii)). It also notes that section 42(c) of the Labour Act forbids the employment of any child between the ages of 15 and 16 years in any underground mine. The Committee recalls that Article 3, paragraph 3, of the Convention lays down that the competent authority may authorize, after consultation with the organizations of employers and workers concerned, young persons older than 16 years of age to undertake hazardous work on condition that their health, safety or morals are fully protected and that they receive adequate specific instruction or vocational training in the relevant branch of activity. The Committee reminds the Government that this provision of the Convention deals with limited exceptions to the rule of prohibiting hazardous work to young persons under 18 years of age and does not constitute overall permission to undertake hazardous work as from 16 years of age. The Committee requests the Government to ensure that young persons who undertake work, as defined in section 42(b) and (c) of the Labour Act, are at least 16 years of age. It also requests the Government to indicate the measures taken or envisaged to ensure that the health, safety and morals of young persons aged 16 to 18 years engaged in these types of work are fully protected and that these persons have received adequate specific instruction or vocational training in the relevant branch of activity.

Article 6. Vocational training. The Committee notes the Government’s statement, in its report, that work in schools for general, vocational or technical education is not regarded as child labour. It also observes that the National Vocational Training Act, No. 18 of 1994, regulates the training of apprentices and vocational trainees, and provides for the establishment of a Vocational Training Board and Trade Advisory Committees. It notes that section 17 of the National Vocational Training Act provides that no person shall employ a person as an apprentice in a designated trade for which a scheme has been approved without having first been granted the written approval of the Chief Inspection to do so. Under section 13 of the Act, the Vocational Training Board may establish vocational standards for vocational training and apprenticeships in any designated trade, which will become the conditions applicable in that trade. Those schemes will determine the qualifications, "including, with due regard to the provision of section 42 of the Labour Act, 1992, the minimum age and education standard required for the trade" (section 14(3)(i)). The Committee recalls in this respect that, by virtue of Article 6 of the Convention, only work done within the context of a programme of training or vocational guidance by persons of at least 14 years of age in enterprises is excluded from the scope of this Convention. It therefore requests the Government to indicate whether there are provisions setting the minimum age for entry into apprenticeship at 14 years and to indicate the measures adopted by the Board to determine the duration of apprenticeship, the types of trade in which an apprenticeship may be undertaken, and the conditions under which an apprenticeship may be undertaken and performed.

Article 7. Light work. The Committee observes that the national legislation does not authorize light work. The Committee nonetheless observes that according to the 1999 Namibia Child Survey Activities, it appears that quite a number of children under 14 years are economically active in some way or the other. The Committee recalls that Article 7, paragraphs 1 and 4, of the Convention provides that national laws or regulations may permit persons from the age of 12 to engage 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 number of hours during which, and the conditions in which such employment or work may be undertaken. The Committee accordingly requests the Government to indicate the measures taken or envisaged in respect of provisions to determine light work activities and the conditions in which such employment or work could be undertaken by young persons from 12 years and above.

Article 8. Artistic performances. The Committee observes that the Government’s report contains no information on the participation of children in artistic performances. Noting the absence of legislative provisions allowing the participation of children below the general minimum age of 14 years in artistic performances, the Committee draws the Government’s attention to the possibility under Article 8 of the Convention for establishing a system of individual permits for children under the general minimum age who work in activities such as artistic performances, if such activities are carried out in practice. The Committee requests the Government to state whether children under the age of 14 years participate in artistic performances in practice and, if so, to provide information on these activities.

Article 9. Sanctions. The Committee notes the Government’s indication, in its report, that section 105 of the Labour Act provides that a person who contravenes the rules regarding labour inspectors’ powers is liable to a fine not exceeding N$4000 and/or imprisonment of up to 12 months. It also observes that for the employment of children contrary to section 42 of the Labour Act, section 44 of the Labour Act establishes the powers of the district labour court in case of contraventions and failure to comply. Upon receipt of a complaint, the district labour court may issue an order to the employer to discontinue the employment of the child in question to the extent specified in the order. It also notes that section 23 of the Act provides that any person who contravenes or fails to comply with an order of the Labour Court or district labour court shall be guilty of an offence and on conviction be liable to the penalties which may by law be imposed for contempt of court. The Committee requests the Government to provide information on the sanctions for violations of section 42 of the Labour Act.

Part III of the report form. The Committee notes that the labour inspectors’ form provided by the Government includes a section on child labour. The Committee asks the Government to provide information on the findings of the labour inspectors regarding the employment of children under 14 years and those aged 14 to 16 years.

Part V of the report form. The Committee notes, with interest, that the Ministry of Labour conducted a survey on child activities in Namibia in 1999. It observes that for the purpose of collecting the data, the term "working children" was broadly defined so as to include all children aged 6 to 18 years, self-employed children, children who gathered food for household consumption, apprentices, children who were engaged in activities for family members or relatives without pay. The survey shows that 16.13 per cent of children aged 6 to 18 years were working, 95.4 per cent of whom were found in rural areas. The survey also indicates that most of the working children combined work with schooling/training. Consequently, in rural households, 77 per cent of working children are absent from school/training institutions due to a busy agricultural season. Further data provides information on the distribution of working children by region, area, by school attendance status or by occupation. The Committee invites the Government to report any measures taken or envisaged gradually to bring the situation described above into line with its legislation and the Convention. The Committee requests the Government to continue to supply information on the practical application of the Convention, 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 contraventions reported.