CHAPTER VIII
Substantive provisions of labour legislation:
The Effective Abolition of Child Labour

Introduction

Children’s work is as old as humanity itself and is still very common in certain regions. But a consensus has emerged over the past two centuries or so, leading to almost universal recognition that child labour is harmful for children, bad for families and detrimental to national development and economic performance. Children who spend their youth working are in their great majority denied access to education and personal development. They are thereby denied the fundamental right to equality of opportunity, which is essential to any democratic society. The elimination of child labour is an integral part of the process of national development and poverty alleviation.

More recently, there has been overwhelming recognition of the urgent need to eliminate the worst forms of child labour, as witnessed by the extremely rapid and widespread ratification of the ILO’s Convention on this subject.

Under the terms of the ILO Declaration on Fundamental Principles and Rights at Work of 1998, all ILO member States have an obligation to promote, respect and realize the principle of the effective abolition of child labour.  The Declaration calls upon the ILO to assist member States in doing so and to encourage other international organizations to support their efforts. The Minimum Age Convention, 1973 (No. 138) and Recommendation No. 146, and the Worst Forms of Child Labour Convention, 1999 (No. 182) and Recommendation No. 190, are the ILO’s primary instruments governing the progressive elimination of child labour, giving priority to its worst forms. The legislative guidance provided in this chapter draws primarily on these instruments.

Convention No. 138 sets forth a series of standards with respect to the minimum age for admission to employment or work, the application of which should be at the heart of any member State's policy to eliminate child labour, even if the effectiveness of such a policy rests largely on complementary policy measures in the fields of education, employment and health, as outlined in Recommendation No. 190.  When countries ratify Convention No. 138, they must at the same time declare a minimum age for admission to employment or work which cannot be lower than the age of completion of compulsory schooling and, in any case, not less than 15 years. Member States whose economy and educational facilities are insufficiently developed may initially specify a general minimum age of 14 years.

While a large number of countries have set national minimum age standards that are within the parameters of Convention No. 138, in many cases the effective abolition of child labour in all economic sectors remains a long-term objective, requiring important economic advances before it can fully be met.  Some forms of child labour, however, cannot be condoned, even as a temporary measure over a longer period of time.  For this reason, the ILO adopted Convention No. 182 according to which ratifying countries commit themselves to taking immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.

The following sections provide guidance on how to give effect to these two approaches, firstly the legislative prohibition of child labour as defined by Convention No. 138, and secondly the elimination of the worst forms of child labour.

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Legislative prohibition of child labour

Legislation aiming to effectively eliminate child labour across all economic sectors should:

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Legislation on minimum age for admission to work

(1) Legislation on the minimum age for admission to work should:

Countries which have declared 14 years to be the initially applicable general minimum age, because they consider that their economic and educational facilities are insufficiently developed to set a higher minimum age (developing countries), may establish a general minimum age of 14 years. 2

(2) Legislation on the minimum age for admission to work should also:

(3) Legislation on minimum age for admission to work may provide for a lower minimum age for light work. To be in conformity with the Convention, such legislation must:

In the cases where young persons have not yet completed compulsory education, the legislation may specify a minimum age of 15 for light work.4

Legislation may provide an exemption from the general minimum age:

Table

MINIMUM AGES FOR ADMISSION TO EMPLOYMENT

ILO Minimum Age Convention, 1973 (No. 138)

 

General application

Countries with insufficiently developed economies and educational facilities

General minimum age for admission to employment

not less than the age of completion of compulsory schooling, and in any case not less than 15

14

Hazardous work and other forms of work categorized as a worst form of child labour

18

18

Light work

13 to 15

12 to 14

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Implementation of legislation on minimum age for admission to work

The effective implementation and enforcement of minimum age legislation requires sanctions for violators of minimum age laws, proper investigation to identify the existence of child labour and effective inspection of workplaces.

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Sanctions for violations of legislation

Minimum age provisions should be enforced through sanctions. The legislation should:

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Investigation, inspection and other means of enforcement

Investigation. In order to properly enforce child labour laws and create effective programmes aimed at the elimination of child labour, instances of child labour and the circumstances surrounding such labour first have to be identified. The legislation can support the identification of occurrences of child labour by:

Inspection. Once the existence of child labour is established, compliance with minimum age legislation should be actively pursued. Labour inspection services normally carry out this function, and a legal mandate is important to ensure that their work is bolstered by the necessary authority and carried out equitably. In providing for such a mandate, the legislation could:

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Other means of enforcement.  In instituting other methods of implementation and enforcement of child labour provisions, the legislation may:

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To improve the justiciability of rights, legislation may also:

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Social and economic measures to eliminate child labour

Preventive and protective measures

The effective elimination of child labour requires the implementation of social and economic programmes designed to prevent future use of child labour and to protect children who are already working.20  In order to optimize the effectiveness of these programmes, it is necessary to involve the concerned groups, such as organizations of parents, child protection agencies, employers’ and workers’ groups, and NGOs in the development of the social and economic measures adopted to combat child labour.

Prevention.  Legislation plays a role in preventing child labour by providing a legal basis for the adoption of measures and programmes intended to remedy the economic and social causes that are at the roots of child labour.21  Such legislation could:

Protective measures.  Young persons can lawfully work when they have reached the minimum age for admission to employment or work. For those who are below this minimum age, it may be that national law has not (yet) prohibited their admission to work, since Convention No. 138 allows the progressive application of its provisions under certain conditions. In both cases, young persons should enjoy special legal protection so that they work in conditions that are not harmful to their well-being. Legislation could:

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Education

Education is not only the key to enabling young persons to obtain productive work once they have reached the minimum age, it is also the single most important factor in preventing child labour and rehabilitating those who have been withdrawn from child labour. In this regard, it is important to:

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Legislation could also:

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Legislation should ensure that children and their families, local communities, non-profit-making organizations, employers’ and workers’ groups and agencies concerned with protecting children are included in the development of preventive and protective measures to combat child labour.43

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Elimination of the worst forms of child labour

While national policy should ultimately aim for the elimination of all forms of child labour, priority has to be given to the prohibition and elimination of the worst forms of child labour.44 In both cases, legislation is a key instrument in consolidating national policy. Convention No. 182 requires member States to take immediate and effective measures to combat the worst forms of child labour, which are defined as:

The legislation should in all cases:

 In addition, the legislation could:

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Where measures for the elimination of the worst forms of child labour overlap with forced labour provisions, the legislation should ensure that children are afforded the protection set out in those provisions as well as the additional forms of protection recommended below.

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Slavery or practices similar to slavery

Legislation on the prohibition and elimination of the worst forms of child labour must include measures to combat all forms of slavery or practices similar to slavery, including:

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The sale and trafficking of children

Convention No. 182 does not define the sale and trafficking of children, nor does it indicate its constituent elements. This omission grants member States reasonable discretion under Convention No. 182 to consider precisely when a particular situation amounts to a practice similar to slavery. This discretion is however circumscribed by the detailed definitions contained in other international instruments. The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography defines the sale of children as any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration. The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime gives the following definition of trafficking:

Article 3.  Use of terms

For the purposes of this Protocol:

(a) "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.  Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;

(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in persons" even if this does not involve any of the means set forth in subparagraph (a) of this article;

(d) "Child" shall mean any person under eighteen years of age.

In the light of the above, legislation aimed at the prohibition and elimination of child trafficking should:

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Legislation may also:

Note : United Nations Model Treaty on Mutual Assistance in Criminal Matters

            Article 1

[…]2. Mutual assistance […] may include:

(a) Taking evidence or statements from persons;

(b) Assisting in the availability of detained persons or others to give evidence or assist in investigations;

(c) Effecting service of judicial documents;

(d) Executing searches and seizures;

(e) Examining objects and sites;

(f) Providing information and evidentiary items;

(g) Providing originals or certified copies of relevant documents and records, including bank, finance, corporate or business records.

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Debt bondage and serfdom

Debt bondage is a condition in which an individual has pledged her/his services or the services of a person under his/her control as security for a debt owed to an employer.51 These situations develop into forced labour where the services are not reasonably applied to the elimination of the debt. The individual is therefore forced to continue working to repay a debt that does not diminish and in some cases even increases if it is necessary to take out further loans (see Chapter VI). Serfdom is a situation in which an individual is bound to render services and work on land belonging to another person and is not free to change her or his status.52 Children are particularly vulnerable to these forms of bonded labour. They often inherit debt from their parents or are born into a condition of serfdom. In some cases, families sell their children into bonded labour in exchange for money.

Legislation concerning children subject to debt bondage and serfdom should:

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Forced or compulsory labour

The Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105), are the primary ILO instruments addressing forced and compulsory labour (see Chapter VI). They apply to children as well as adults. In order to protect children from these forms of labour, legislation should address forced labour in general and in addition should provide specific protection for children. Special attention should also be paid to the forced or compulsory recruitment of children for use in armed conflict.

Legislation concerning children in situations of forced or compulsory labour should:

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Forced or compulsory recruitment of children for use in armed conflict

Legislation to prevent and eradicate the forced or compulsory recruitment of children for use in armed conflict should:

These recruitment procedures should include:

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Other forms of slavery and practices similar to slavery and forced or compulsory labour

Legislation addressing the worst forms of child labour should cover all other forms of forced or compulsory labour and practices similar to slavery, including:

As is the case with all forms of forced or compulsory labour involving children, legislation should ensure that enforcement provisions regarding forced or compulsory labour and practices similar to slavery also apply to children. In addition, legislation should provide that all forms of slavery or practices similar to slavery involving children are criminal offences subject to criminal penalties (see Other measures for the enforcement and implementation of provisions on the worst forms of child labour below).

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Child prostitution and pornography

Convention No. 182 does not define prostitution or pornography, but with the same reservation expressed before under the section on the sale and trafficking of children, reference can usefully be made to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. The Protocol defines child prostitution as the use of a child in sexual activities for remuneration or any other form of consideration, and child pornography as any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.

Legislation addressing child prostitution and pornography should:

See Interpol database of legislation on sexual offences against children.

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The use of children for other illicit activities

In addition to addressing the situation of children who are victims of trafficking, prostitution and other hazardous forms of work, legislation on child labour should also explicitly prohibit the use of child labour in other illicit activities, including:

Legislation targeting child labour in these types of activities should:

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Work that is likely to harm the health, safety or morals of children

All forms of work, which by their nature or the circumstances in which they are carried out are likely to harm the health, safety or morals of children, must be prohibited and eliminated. This obligation under Convention No. 182 adds focus to the already existing (and still valid) obligation under Convention No. 138 to outlaw the admission of persons below 18 years of age to work which is likely to jeopardize the health, safety or morals of children below 18 years of age. The hazardous child labour envisaged by Convention No. 182 is work that directly affects the health, safety or morals of children, can be identified in practice within a national context and must subsequently be subject to a programme of action containing immediate and effective measures to eliminate it.

From this perspective, the hazardous work determined in accordance with Convention No. 182 may take the form of a core list selected from an enumeration of hazardous types of work drawn up in accordance with Convention No. 138. It may accord with this list, or it may be an entirely new list, depending on the assessment of the government in consultation with the social partners.

Legislation can play the following role in the process of prohibiting and eliminating the engagement of children in work that is likely to harm their health, safety or morals:

For examples of the types of work governments have considered hazardous for children and young people, see ILO, Child labour: Targeting the intolerable, p.49, Annex 5.60

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See the other example in the section above on Legislation on minimum age for admission to work.

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Special groups and hidden work situations

Legislation can also establish measures to reach out to children at special risk,61  who include:

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The measures taken in this respect should aim to:

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Implementation and enforcement

In order to ensure the implementation and enforcement of provisions concerning the worst forms of child labour, legislation should provide for penal and other sanctions and should support other measures, such as the removal of children from the worst forms of child labour, the establishment of rehabilitation programmes and measures focusing on children at special risk.

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Other measures for the enforcement and implementation of provisions on the worst forms of child labour

    The legislation should also support measures for:

Other measures essential to the enforcement and implementation of provisions on the worst forms of child labour include establishing effective labour inspection systems and instituting social and economic programmes aimed at preventing child labour and protecting child workers. These are discussed above in connection with the measures aimed at eliminating all forms of child labour in general.

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1. Convention No. 138, Article 2(3).

2. Ibid., Article 2(4).

3. Ibid., Article 7(1).

4. Ibid., Article 7(2).

5. Ibid., Article 9(1).

6. Bequele, pp. 23-27.

7. Recommendation No. 190, Paragraph 5(1).

8. Ibid., Paragraph 5(2).

9. Ibid., Paragraph 5(3).

10. Bequele, op. cit., pp. 24, 43-57.

11. Recommendation No. 146, Paragraph 14(1)(a).

12. Ibid., Paragraph 14(2).

13. Ibid., Paragraph 14(3).

14. Recommendation No. 190, Paragraph 15(g).

15. Recommendation No. 146, Paragraph 16.

16. Convention No. 138, Article 9(3).

17. Recommendation No. 190, Paragraph 15(i).

18. From recommendations on the enforcement of legislation against child bondage, ILO, 1992, pp. 7-8.

19. Idem.

20. See Bequele, op. cit., p. 31.

21. Ibid., op. cit., pp. 29-41.

22. Recommendation No. 146, Paragraph 2(a).

23. Bequele, op. cit., p. 33.

24. Recommendation No. 146, Paragraph 2(b).

25. Ibid., Paragraph 2(c).

26. Bequele, op. cit., p. 34.

27. Ibid., pp. 34-35.

28. Recommendation No. 146, Paragraph 13(1)(b).

29. Ibid., Paragraph 13(1)(c).

30. Ibid., Paragraph 13(1)(d).

31. Ibid., Paragraph 13(1)(a).

32. Ibid., Paragraph 13(1)(e).

33. Bequele, op. cit., p. 38.

34. Ibid., p.38.

35. Convention No. 138, Article 2(3).

36. Convention No. 182, Article 7(2)(c); and Bequele, op. cit., pp. 130-133.

37. Recommendation No. 146, Paragraph 4.

38. Ibid., Paragraph 2(d).

39. Bequele, op. cit., p. 38.

40. Ibid., p. 141.

41. Recommendation No. 190, Paragraph 15(j).

42. Bequele, op. cit., p. 40.

43. Convention No. 182, Article 6(2); Recommendation No. 190, Paragraph 2; and Bequele, op. cit., pp. 43-54.

44. For an overview of the magnitude of the problem of children engaged in the most egregious forms of child labour, see Child labour: Targeting the intolerable, Report VI(1), ILC, 86th session, Geneva, 1998, pp. 3-22.

45. Convention No. 182, Article 3.

46. Ibid., Article 1.

47. Ibid., Article 1.

48. Ibid., Article 2.

49. Ibid., Article 7(d).

50. Ibid., Article 3(a).

51. United Nations Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Article 1(a).

52. Ibid., Article 1(b).

53. Convention No. 29, Article 11(1).

54. Principles and Best Practices on the Prevention of Recruitment of Children into the Armed Forces and Demobilization and Social Reintegration of Child Soldiers in Africa (the "Cape Town Principles"), adopted by the participants at the Symposium on the Prevention of Recruitment of Children into the Armed Forces and Demobilization and Social Reintegration of Child Soldiers in Africa, organized by UNICEF in cooperation with the NGO Sub-group of the NGO Working Group on the Convention on the Rights of the Child, Cape Town, 30 April 1997.

55. The ILO Committee on Child Labour agreed that domestic work where children are mistreated or humiliated and other types of work or activities where the child is delivered to and wholly dependent on the employer are covered by the phrase practices similar to slavery. Report of the Committee on Child Labour, ILC, 86th Session, Geneva, 1998, para. 130.

56. Convention No. 182, Article 3(b).

57. See Report of the Committee on Child Labour, op. cit., para. 134.

58. Recommendation No. 190, Paragraph 12(c).

59. Ibid., Paragraphs 3 and 4.

60. Child labour: Targeting the intolerable, op. cit.

61. Convention No. 182, Article 7(d).

62. Ibid., Article 7(2)(e).

63. Recommendation No. 190, Paragraph 2(i).

64. Ibid., Paragraph 2(iv).

65. Report of the Committee on Child Labour, ILC, 87th Session, Geneva, 1999, para. 228; and Report of the Committee on Child Labour, 1998, op. cit, para. 256.

66. Report of the Committee on Child Labour, 1999, op. cit., para. 228.

67. Recommendation No. 190, Paragraph 2(iii).

68. Report of the Committee on Child Labour, 1999, op. cit., para. 222; and Report of the Committee on Child Labour, 1998, op. cit., para. 130.

69. Recommendation No. 190, Paragraph 2(d).

70. Bequele, op. cit., pp. 23-25.

71. Recommendation No. 190, Paragraph 2.

72. Convention No. 182, Article 7(2)(a).

73. Ibid., Article 7(2)(b).

74. Convention No. 182, Article 7(2)(b); and United Nations Convention on the Rights of the Child, Article 39.

75. Convention No. 182, Article 7(2)(c).

76. Ibid., Article 7(2)(d).

77. Ibid., Article 6.

78. Recommendation No. 190, Paragraph 2.

79. Convention No. 182, Article 8.

80. Recommendation No. 190, Paragraphs 11 and 16. The United Nations Convention on the Rights of the Child also calls for States parties to take all appropriate bilateral and multilateral measures to prevent the abduction of, the sale of, or trafficking in children (Article 35).

Updated by MB. Approved by AB. Last Updated 10 December 2001.