Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

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

The Committee notes the Government’s report. It notes with interest that the Government ratified Convention No. 182 on the worst forms of child labour on 10 July 2003. Noting the Government’s very succinct report, the Committee requests the Government to supply a detailed report for the next session, including information on the following points.

Article 1 of the Convention. The Committee notes that Serbia and Montenegro has undergone political changes, ethnic conflicts and wars for the last decade. It notes that a declaration on the protection and promotion of children’s rights was adopted in 1996. It is stated therein that the Government will provide for measures following goals and principles set by the Yugoslav Plan of Action for Children up to 2000. The Committee requests the Government to provide information on the Plan of Action for Children, and on whether it was implemented, or postponed due to the political events. It further asks the Government to indicate whether other national policies have been taken or are envisaged to ensure the effective abolition of child labour.

Article 2, paragraph 1. 1. Scope of application. The Committee notes that the Federal Law on Employment Relationship of 1996 (Official Gazette of FRY, No. 29 of 26 June 1996) applies only to "employment relationships" which are the relationships based on employment, between an employee and an enterprise established by an employment contract (section 1), or between an employee and the State (section 2). The Committee also notes that in Serbia the minimum age specified under section 13 of the Labour Law of 2001 applies only to an employment relationship. Regarding self-employment in Serbia, the Committee notes that, by virtue of section 127 of the Labour Law of 2001, it shall be performed in the manner and under the conditions prescribed by a special law. The Committee recalls that the Convention shall apply to all kinds of work or employment, whether or not there is a contractual relationship. The Committee therefore requests the Government to supply information on the measures taken or envisaged in Montenegro to ensure the application of the Convention to all types of work, including self-employment. Furthermore, as regards Serbia , it asks the Government to indicate whether the special law referred to in section 127 of the Labour Law of 2001 has been adopted.

2. Minimum age for admission to employment or work. The Committee notes the Government’s report which indicates that under section 13 of the Labour Law of 2001, employment may be established for a person of at least 15 years who meets the conditions for work on a particular job laid down in a relevant decision of the employer. The Committee further notes that according to section 7 of the Federal Law on the Employment Relationship of 1996, a person of 15 years of age may be employed provided he/she has general health ability. The minimum age for admission to employment or work under the national legislation in Serbia appears to be in conformity with the minimum age of 15 specified by the Government at the time of ratification. The Committee notes that according to available information a new Labour Law seems to have been enacted in August 2003 for Montenegro. The Committee requests the Government to provide information on the legislation in force in Montenegro regarding the minimum age for admission to employment or work, and to provide a copy of the relevant text.

Paragraph 3. Compulsory schooling. The Committee notes that article 32 of the Constitution of Serbia and article 62 of the Constitution of Montenegro state that primary education shall be compulsory and free. It also notes that the Law on Primary School of 1992, as amended in 2002, provides that primary education lasts eight years in Serbia (section 1). Regarding education in Serbia, the Government indicates that education has been identified as a priority area for the development of Serbia, and that it therefore intends to reform the educational system. 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 for compulsory education, where it exists. 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 notes that the minimum age for admission to employment or work is 15 years. However, it is not clear what the age of completion of compulsory schooling is. The Committee consequently requests the Government to indicate the age at which compulsory schooling ceases and to provide further information on the legislation applicable to education in the State Union of Serbia and Montenegro.

Article 3, paragraph 1. Minimum age for admission to hazardous work. The Committee notes the Government’s indication that under section 13, subsection (3), of the Labour Law of 2001, an employment relation may be established with a person under 18 years of age under the following conditions: he/she shall obtain the written consent of his/her parents or guardian; the work shall not endanger his/her health, morals and education; and shall not be prohibited by law. The Committee also notes that, by virtue of section 67 of the Labour Law of 2001, employees under 18 years of age "shall not work in jobs that mainly involve particularly difficult physical work or underground or underwater works, nor shall they work on jobs that may have a harmful effect or involve increased risk for their health and lives in view of their psycho-physical abilities". However, the Committee notes that the provisions of the Labour Law of 2001 apply only to Serbia, by virtue of section 2 of this law. The Committee observes that the Constitution of Montenegro of 1992 prohibits the employment of children and minors on jobs hazardous for their health and development (article 61). The Committee recalls that by virtue of Article 3, paragraph 1, of the Convention no one under 18 years of age shall be admitted 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 or morals of young persons. The Committee requests the Government to indicate whether the legislation in Montenegro provides for a prohibition to employ children under 18 years of age similar to the one laid down in the Labour Law of 2001 applicable to Serbia. It also asks the Government to provide information on the definition of children and minors under the Constitution of Montenegro.

Article 3, paragraph 2. Determination of hazardous work. The Committee notes that the national legislation does not seem to provide for a list of the types of employment or work likely to jeopardize the health, safety and morals of young persons, except for the reference to underwater and underground work in section 67 of the Labour Law of 2001 applicable to Serbia. The Committee reminds the Government that by virtue of Article 3, paragraph 2, of the Convention, a list of the types of employment or work considered to be hazardous shall be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned, where such exist. The Committee requests the Government to provide further information on the list of the types of employment or work which are likely to jeopardize the health, safety or morals of young persons.

Article 6. Vocational training. The Committee notes that according to section 13 of the Federal Law on Employment Relationships of 1996, a person may employ an intern, i.e. a person who has obtained a university degree, an associate degree or a secondary school qualification, and who is employed for the first time for the purposes of being trained for independent work. Under the Serbian Labour Law of 2001, an employer may employ a person as a trainee for an occupation for which he/she has acquired appropriate education, if it is prescribed by law or by the decision of the employer (section 33). The traineeship shall not last for more than one year unless otherwise prescribed by law (section 33, subsection (2)). The trainee shall be entitled to earnings and to all other rights arising from employment, in compliance with the law or the labour contract. The Committee notes that a trainee may be less than 14 years of age. The Committee reminds the Government 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 undertakings is excluded from the scope of this Convention. The Committee therefore requests the Government to indicate whether there are provisions setting the minimum age for entry into apprenticeship at 14 years in the State Union of Serbia and Montenegro. It further asks the Government to indicate whether the legislation of Montenegro provides for conditions regarding traineeship similar to those laid down in the Labour Law of 2001 applicable to Serbia.

Article 7. Light work. The Committee notes that no reference is made to light work in the Government’s report. The Committee recalls that Article 7, paragraph 1, of the Convention provides that national laws or regulations may permit persons of 13 to 15 years of age 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 provide information on any legislation that determines light-work activities and the conditions in which such employment or work may be undertaken by young persons aged 13 or more. It further requests the Government to provide information on whether light work activities are performed in practice by children.

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 15 years in artistic performances, the Committee draws the Government’s attention to the possibility under Article 8 of the Convention of establishing a system of individual permits for children under the general minimum age who work in activities such as artistic performances, if such activities exist in practice.

Article 9, paragraph 1. Sanctions. According to section 164 of the Labour Law of 2001 applicable in Serbia, an employer shall be fined 100,000 to 200,000 dinars if he/she fails to provide special protection to an employee under 18 years of age (violation of section 67 of the Labour Law) and if he/she fails to comply with the decision of the labour inspector pursuant to the provisions of sections 158, 159 and 162 of the Labour Law. The Committee recalls that, by virtue of Article 9 of the Convention, the competent authority shall take measures, including the provision of appropriate penalties, to ensure the effective enforcement of the provisions of the Convention. Since no information is available on the sanctions applicable in Montenegro for the violation of the provisions of the labour legislation on child labour, the Committee requests the Government to provide information on this point.

Article 9, paragraph 2. Persons responsible for compliance. Since the Government’s report does not indicate the persons responsible for compliance with the provisions giving effect to the Convention as required by Article 9, paragraph 2, of the Convention, the Committee requests the Government to provide information on this point in its next report.

Article 9, paragraph 3. Keeping of registers by employers. The Committee notes that section 128 of the Labour Law of 2001 provides that an employee shall have an employment booklet and shall deliver it to the employer when establishing employment. This employment booklet is a public document and shall be issued by the competent municipal authority. It notes that the employer shall return the duly filled out employment booklet to the employee on the day of termination of the employment. The Committee also notes that section 128 of the Labour Law of 2001 does not require the age and name of the employees to be written down in the booklet. The Committee recalls that, by virtue of Article 9, paragraph 3, of the Convention, registers or other documents shall be kept and be made available by the employer, and such documents shall contain the names and ages or dates of birth, duly certified wherever possible, of persons whom he/she employs or who work for him/her and who are less than 18 years of age. The Committee requests the Government to indicate the legislation applicable to Montenegro since the Labour Law of 2001 applies only to Serbia. It further requests the Government to ensure that, throughout the entire State Union of Serbia and Montenegro, an employment booklet shall contain the name and age or date of birth of employees younger than 18 years of age and shall be kept and made available by the employer.

Part III of the report form. According to section 157 of the Labour Law of 2001, applicable in Serbia, the labour inspectorate shall supervise the application of the present law and other labour regulations. The labour inspectors shall request, by means of a decision in writing, that established violations of the law or labour contract be eliminated (section 158 of the Labour Law of 2001), and shall submit a request for instituting offence proceedings (section 161). They may also issue a decision deferring the implementation of the employer’s decision (until the court has adopted an effective ruling) if they find that the employer’s decision constitutes evident violation of the employee’s rights and if the employee has started legal proceedings (section 162, subsection 1). The Committee requests the Government to indicate the legislation applicable in Montenegro and to state whether there is an authority which ensures the application of the legislation on child labour in Montenegro.

Part V of the report form. The Committee requests the Government to supply information on the practical application of the Convention for the entire State Union of Serbia and Montenegro, 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 the contraventions reported.

Part VI of the report form. The Committee requests the Government to supply information on the representative organizations of employers and workers to which copies of the report have been communicated and whether the Government has received any observations from them.