Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

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

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

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour. In its previous comments, the Committee had noted the various initiatives embarked upon to eradicate child labour in South Africa. The Committee notes the Government’s information that it has been reviewing and updating the departments’ responsibilities as outlined in the Child Labour Action Programme (CLAP), which is now known as the Child Labour Programme of Action (CLPA). It notes that a second draft of the CLPA has been discussed by the Implementation Committee and adopted in April–May 2007. Furthermore, according to the Technical Progress Report (TPR) of the ILO/IPEC Project Towards the Elimination of the Worst Forms of Child Labour (TELC), a major national awareness campaign on child labour is in full swing, including school outreach programmes, radio advertisements and extensive radio interviews. The Committee also notes that an ILO/IPEC action programme was implemented in 2006 to study the effects of excessive water fetching on children and their education. Finally, the Committee notes the adoption of the first part of the Children’s Act, No. 38 of 2005, which covers issues over which the national Government has jurisdiction, and which aims to eventually replace the Child Care Act. The Committee takes due note of this information and requests the Government to continue providing information on national policy measures designed to ensure the effective elimination of child labour, and on the results attained.

Article 2, paragraph 1. Scope of application. Self-employment. The Committee had previously noted that both the Basic Conditions of Employment Act (BCEA) and the Child Care Act appeared to exclude self-employment from their application. It had noted the Government’s information that although currently there are no measures taken by the South African Government to extend the application of the Convention to include all types of work, including self-employment, the South African Government has a wide range of existing programmes aimed at directly and indirectly improving the situation of its children, such as poverty eradication programmes. The Committee had also noted the Government’s information that the matter of covering self-employment in the BCEA will be brought before the relevant stakeholders for consideration. The Committee notes that the National Department of Labour, in collaboration with the ILO, has established a Technical Task Team responsible for drafting legislation that adheres to the Conventions ratified by South Africa, including Convention No. 138 of the ILO. This Technical Task Team, which consists of eight members representing Government, workers’ and employers’ organizations, has developed a document with three categories in order to address the issues of child labour: (1) the summary of the legislation; (2) the draft legislation; and (3) guidelines for employers to adhere to the standards set by the legislation. The Committee requests the Government to provide information on whether the draft legislation has taken into consideration the Committee’s comments regarding the application of the labour laws to children who are self-employed. It furthermore requests the Government to supply a copy of the document prepared by the Technical Task Team, which was not attached to the Government’s report.

Article 3, paragraphs 1 and 2. Minimum age for admission to hazardous work and determination of hazardous work. Following its previous comments, the Committee takes note that section 141(1)(e) of the Children’s Amendment Bill [B19-2006] contains a general prohibition concerning hazardous work by providing that no person may encourage, induce or force a child, or allow a child, to perform labour that (i) by its nature or circumstances is likely to harm the health, safety or morals of a child; or (ii) places the child’s well-being, education, physical or mental health, or spiritual, moral or social development at risk. According to the Children’s Act, which the Children’s Amendment Bill aims to modify, a child is defined as being any person under the age of 18 years. Furthermore, the Committee notes the Government’s information, in its report under Convention No. 182, that the draft regulations determining the types of hazardous work were presented to the Advisory Council on Occupational Health and Safety for their consideration and endorsement. In this regard, the Committee takes note of the list of the 24 types of hazardous work prohibited to children under 18 years, provided by the Government in its report under Convention No. 138. It asks the Government to indicate which legal provision contains the abovementioned list.

Article 3, paragraph 3. Exception to the age of 18 years for admission to hazardous work. In its previous comments, the Committee had noted that, according to section 44 of the BCEA, the Minister, on the advice of the Employment Conditions Commission, may make regulations to prohibit or place conditions on the employment of children who are at least 15 years of age, and that the Department of Labour was in the process of drafting regulations pertaining to children between 15 and 17 years. The Committee had expressed its hope that the Government, in adopting the regulations pursuant to section 44 of the BCEA, would take into consideration that the performance of types of hazardous work is only authorized for young persons between 16 and 18 years of age, in accordance with the requirements of Article 3, paragraph 3, of the Convention. The Committee requests the Government to provide more detailed information on whether the draft legislation prepared by the Technical Task Team, mentioned in the comments above, deals with the authorization for young persons between 16 and 18 years of age to perform certain types of hazardous work. If so, the Committee asks the Government to indicate whether the said draft legislation has taken into consideration the requirements of Article 3, paragraph 3, of the Convention.

Article 7. Light work. The Committee had requested 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 of 13 years or more. The Committee had noted that, even though South African domestic employment law prohibits the employment of children below the age of 15 years, the CLAP reported that 728,000 (6.8 per cent) children aged 5–14 years were found to work three hours and more per week, and 266,000 (2.5 per cent) to work 12 hours and more per week.

Noting the absence of information on this point, the Committee once again recalls that the specified minimum age for admission to employment or work in South Africa is 15 years. It reminds the Government that, by virtue of Article 2, paragraph 1, of the Convention, no one under 15 years of age shall be admitted to employment or work in any occupation. It also recalls that, by virtue of Article 7, paragraphs 1 and 3, of the Convention, national laws or regulations may permit persons from the age of 13 years to engage in light work which is: (a) not likely to be harmful to their health and development; and (b) not such as to prejudice their attendance at school, their participation in vocational orientation or training programmes approved by the authority or their capacity to benefit from the instruction received. 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 asks the Government to specify whether the necessary steps to regulate light work were taken within the framework of the draft legislation prepared by the Technical Task Team, mentioned above. Moreover, while noting the absence of regulation of light work in the current relevant legislation, the Committee is nonetheless of the view that the admission of children from 13 years to perform light work which is: (a) not likely to be harmful to their health and development; and (b) not such as to prejudice their attendance at school, will permit them to help their parents in undertakings, mostly in the rural areas, while also enabling them to attend school. Therefore, the Committee strongly encourages the Government to include provisions regulating light work in the relevant legislation, in accordance with Article 7 of the Convention, if it has not already been done in the draft legislation prepared by the Technical Task Team.

Article 9, paragraph 3. Registers of employment. The Committee had previously noted that section 31 of the BCEA requires every employer to keep a record containing a list of information on his/her employees, including the date of birth of any employee under 18 years of age. It had noted, however, that according to section 28 of the BCEA, section 31 does not apply to an employer who employs fewer than five employees. The Committee had noted the Government’s information that the Sectoral Determination on the small business sector regulates this provision. Noting the absence of information on this point, the Committee once again requests the Government to indicate whether the Sectoral Determination on the small business sector requires the employer to keep registers containing the names, ages and dates of birth of persons whom he/she employs or who work for him/her and who are less than 18 years of age, in conformity with Article 9, paragraph 3, of the Convention.

Part V of the report form. Application of the Convention in practice. The Committee takes note of the child labour statistics provided by the Government for 31 March 2006 to 1 April 2007. According to those statistics, seven violations of the legislation concerning hazardous work and 12 violations for domestic labour have been reported after inspection. Furthermore, 13 cases have been recommended for prosecution, two defendants have been found guilty, and six cases are currently proceeding in courts. The Committee also notes that, according to the TPR of March 2007 of the TECL Programme, implemented by ILO/IPEC, updated national data on child labour is expected from the Labour Force Survey (LFS) that was run in March 2006 by Statistics South Africa (StatsSA). The LFS has collected information about respondents aged 10 and above and included a section of questions specifically focusing on child-labour-related issues. The Committee invites the Government to continue providing information on the manner in which the Convention is applied, including statistical data on the employment of children and young persons, extracts from reports of inspection services and information on the number and nature of violations detected involving children. Moreover, the Committee requests the Government to supply a copy of the LFS survey run by StatsSA once it is finalized.

The Committee also requests the Government to keep it informed of progress made in enacting the draft labour legislation prepared by the Technical Task Team. In this regard, it hopes that due consideration will be given to all the outstanding comments made by the Committee.