Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

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

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, such as the Child Labour Programme of Action (CLPA), and the ILO–IPEC project “Towards the elimination of the worst forms of child labour” (TECL) which mainly focused on the implementation of the CLPA. The Committee notes the Government’s information that after four years of implementation of the CLPA, it has currently reviewed and developed policies for the second phase of the CLPA for the period 2009–12 (CLPA-II). The CLPA-II identifies a wide range of child labour-linked activities falling within the mandates of the several government departments and agencies. It aims to strengthen the implementation of several government policies, such as: policies and programmes on poverty, employment, labour and social matters; promoting new legislative measures against child labour and its worst forms; strengthening of national capacity to enforce legislative measures; and increasing public awareness and social mobilization against child labour and its worst forms.

The Committee also notes that, according to the technical progress report (TPR) of 30 June 2008 of the ILO–IPEC TECL project, the major mainstreamed policy under the CLPA is the Child Support Grant (CSG), which addressed child poverty and which has had a positive effect on school enrolment. In 2006, 6,980,088 children were direct beneficiaries of the CSG, and in April 2008 this had increased to 8,216,334 children. According to the TPR of 2008, this grant, which is currently available to children of up to 15 years, shall be ultimately extended to all children up to the age of 18 years, for which discussions are ongoing with the Ministers of Finance and Social Development. Furthermore, the CLPA, with the assistance of the TECL, has also achieved mainstreaming of a tool to prioritize water delivery to areas where many children are in households far from safe sources of water. The Committee further notes that, according to the TPR of 2008, a total of 17,375 children has directly benefited through the TECL project and a total of 6,454 (3,517 boys and 2,937 girls) were either withdrawn or prevented from child labour through educational services or training or through other non-education related services. The Committee finally notes that ILO–IPEC is continuing its support for the implementation of the CLPA-II under the TECL‑II project.

Moreover, the Committee notes that the Government with the assistance of the TECL has drafted the “Regulations on Child Labour in South Africa” which includes the Basic Conditions of Employment Act (BCEA) regulations on hazardous work done by children and the Occupational Health and Safety Act (OHSA) regulations on health and safety of children at work. It further notes the Government’s statement that the Employment Conditions Commission and the Advisory Council on Occupational Health and Safety have approved these draft regulations which are currently in the process of publication in the Government Gazette. The Committee expresses the firm hope that the draft regulations on child labour in South Africa will come into effect in the near future. It requests the Government to provide a copy of these regulations as soon as they have been published. It also requests the Government to provide information on the impact of the CLPA-II on abolishing child labour.

Article 2, paragraph 1. Scope of application. Self-employment. The Committee had previously noted that both the BCEA and the Child Care Act appeared to exclude self-employment from their application. It had also noted the Government’s information that the matter of covering self-employment in the BCEA would be brought before the relevant stakeholders for consideration. Noting that the National Department of Labour, in collaboration with the ILO, had established a technical task team responsible for drafting legislation that adheres to the Conventions ratified by South Africa, the Committee had requested the Government to provide information on whether the draft legislation had taken into consideration the Committee’s comments regarding the application of the labour laws to children who are self-employed. The Committee notes the Government’s indication that the draft BCEA regulations on hazardous work done by children stipulates for a wider scope of application of the minimum age provisions, including an independent worker. It notes that according to Regulations 3(1) and 4 of Schedule 2 of the draft regulations, a child who is under the age of 15 years, or who is subject to compulsory schooling, may not be employed as an employee and may not assist any person to carry out any work or business. The Committee further notes that Sectoral Determinations 6 to 14 covers the employment of children in informal sectors including those concerning the private security sector, domestic worker sector, wholesale and retail sector, forestry sector, farm workers sector, and hospitality sector.

Article 3, paragraphs 1 and 2. Minimum age for admission to hazardous work and determination of hazardous work. The Committee had previously noted 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. The Committee notes with interest that Regulations 8 and 9 of the BCEA regulations contain a list of 38 types of work prohibited to children under 18 years of age. In addition, “piece work” and “task work” where the remuneration is based on the quantity of work done, and on the completion of set tasks (section 5) and “night work” (section 7) are also prohibited to children under 18 years.

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 notes that the draft OHSA regulations on the Health and Safety of Children at Work contain provisions for the protection of child workers in hazardous works and prescribes conditions for the performance of such work by child workers (for example, work in elevated positions, lifting of weights, work in a cold, hot, or noisy environment, and to use power tools and cutting or grinding equipment). A “child” according to this regulation means persons under the age of 18 years, and a “child worker” is any child who: (i) is employed by, or works for, an employer and who receives, or is entitled to receive, any remuneration; or (ii) who works under the direction or supervision of an employer or any other person. The minimum age for employment or work being 15 years, it appears that the provisions referring to “child workers” under the OHSA regulations applies to children between 15 and 18 years of age. The Committee notes, however, that according to Regulation 2(2)(b) of the OHSA regulations, “no provision in these regulations may be interpreted as permitting the employment of a child who is 15 years of age or older and is not subject to compulsory schooling in any work which is prohibited in terms of any law”. The Committee recalls that according to the provisions of Article 3(3) of the Convention, the performance of types of hazardous work is only authorized for young persons between 16 and 18 years of age under strict conditions respecting protection and prior training. The Committee therefore requests the Government to take the necessary measures to ensure that the performance of hazardous types of work as indicated under the draft OHSA regulations are authorized only to children of at least 16 years of age, subject to conditions of protection and prior training. The Committee hopes that draft regulations will take into account the principles recalled above and it requests the Government to provide information on any progress made in this respect.

Article 7. Light work. The Committee had previously noted the absence of regulations on light work in the current relevant legislation. It had also noted that, even though South African domestic employment law prohibits the employment of children below the age of 15 years, the CLPA reported that 728,000 (6.8 per cent) children aged 5–14 years were found to work three hours or more per week, and 266,000 (2.5 per cent) to work 12 hours or more per week. It had therefore requested the Government to specify whether the necessary steps to regulate light work by children of at least 13 years of age were being taken within the framework of the draft legislation prepared by the Technical Task Team.

The Committee notes the Government’s statement that the draft regulations on child labour regulate the minimum age and light work by children under 15 years of age. The Committee notes the Government’s reference to Schedule 2, Regulation 4, which states that, “a child who is under 15 years of age or is subject to compulsory schooling may not be employed as an employee and may not assist any person to carry on their business. However, a child worker who is under 15 or subject to compulsory schooling may work in performance of advertising, artistic or cultural activities through a permit granted in terms of Sectoral Determination 10, issued by the Minister of Labour under the BCEA”. This regulation further allows children under 15 years of age to do voluntary work for a church or charitable organization, or as part of his/her schooling to do work that is appropriate for a person of that age. It also notes that Regulation 6(3) of the BCEA regulations further regulate work by children of at least 15 years of age. The Committee observes, however, that the above regulations do not regulate the employment of children of 13 to 15 years of age for light work. The Committee once again recalls that under Article 7 of the Convention, national laws or regulations may permit the employment or work of persons 13 to 15 years of age for 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 on vocational orientation or training programmes approved by the competent authority or their capacity to benefit from the instruction received. The competent authority shall also prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken. The Committee therefore once again strongly encourages the Government to include provisions regulating light work by children of 13 to 15 years of age in the relevant regulation, in accordance with Article 7 of the Convention.

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 notes the Government’s information that the provision requiring an employer who employs fewer than five employees to keep records of the date of birth of any employee under the age of 18 years who is covered by Sectoral Determinations 6 to 14 in the private security sector, domestic worker sector, wholesale and retail sector, forestry sector, farm workers sector, and hospitality sector.

Part V of the report form. Application of the Convention in practice. The Committee notes that according to the statistical information provided by the Government, 16 cases of violations of child labour in the agricultural sector were registered, out of which 14 cases were investigated, six cases prosecuted, and a fine of 5,000 rand (ZAR) (US$672) was imposed in one case. The Committee also notes that according to the TPR of June 2008 of the TECL Programme, implemented by ILO–IPEC, the report and findings of the Labour Force Survey (LFS), carried out in March 2006 by Statistics South Africa, have been finalized which give an updated and comprehensive figure on child labour in the country. The Committee requests the Government to supply a copy of the report of the LFS survey of 2006. It also requests 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.

The Committee encourages the Government to take into consideration, before the adoption of the relevant regulations, the Committee’s comments on discrepancies between the national legislation and the Convention.