ILO ACTRAV - Child Labour - Documentation and Publications

Convention 138 on Minimum Age

The Minimum Age Convention, 1973 (No.138)
and the Role of Trade Unions

CONTENTS

Introduction to
the Convention

Introduction to the Convention

Convention No.138 is a dynamic instrument. It is general in scope, as opposed to sectoral, and takes a comprehensive approach towards the effective abolition of child labour. Therefore, C.138 provides a basis for "a coherent strategy against child labour at the national level." (ILC report "Targeting the intolerable"p.114)

However, C.138 does not offer a whole set of pre-determined standards ready for implementation. Many things have to be decided by each ratifying State, starting from the general minimum age, the list of hazardous work, to the exact scope of application and so on. This is intended to give flexibility to the instrument, and requires a pro-active approach and continued endeavour on the part of ratifying States, i.e. not only the governments but also the social partners.

The Convention explicitly requires consultation with employers' and workers' organizations prior to most of the national decisions to be taken in application of the Convention: for instance, at what age should the general minimum age should be fixed, whether exclusion from the scope should be made or not, what should exactly be in the types of hazardous work to be prohibited to higher age, etc. Thus, the reality and specific practices of various sectors in each country could be reflected in the national standards regarding child labour. In addition, such a tripartite consultation on each issue would certainly contribute in itself to the awareness raising in the country.

Apart from the above "built-in" role of trade unions in C.138, more generally, trade unions are always expected and encouraged to play an active role in the ILO's standard-setting and application. The Constitutional procedures of representation and complaints can be initiated by trade unions or their delegates in extreme cases of non-observance. Before getting to such a last resort, the Committee of Experts has never stopped paying full attention to the observations received from employers' or workers' organizations on the application of ratified Conventions (1) .
This role is all the more important concerning an issue like child labour, where legislative provisions are often far away from a full application in practice.

Unfortunately, there have so far been only very few occasions that trade unions submitted comments on the application of child labour Conventions, except for the cases of forced labour under C.29 involving children among others. If C.138 has not been ratified by the country in question, it is still possible to invoke other ratified Conventions that relate to child labour, such as earlier Conventions on minimum age on particular sectors concerned. C.81 on labour inspection could be useful regarding a failure to ensure the practical application of existing national labour legislation about children and young workers.
C.117 on Social Policy (Basic Aims and Standards) also includes provisions requiring the prescription of the school-leaving age and the minimum age of employment by national legislation. Thus, there are only a handful of ILO member States, including very new members, that have ratified no Convention at all that have bearing on child labour.

It is also important for trade unions to be actively and fully involved in the elaboration of the new instruments on child labour in 1998-99. However, there is no need to wait until the adoption of new standards to start efforts to make the most of existing Conventions. New instruments would not revise C.138, but would complement it. C.138 will remain as the framework for combat against child labour.

This document is intended to highlight the role trade unions are expected to play in the application of C.138. The emphasis have been added to the text of the Convention by the author. The note on the right hand side is an attempt to paraphrase the contents of the Articles for easy reference, and when the strict meaning of the Conventions is sought, the original text of the provisions should be referred to.

Article 1

Each Member for which this Convention is in force undertakes to pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.

Article 1 Notes

Principal commitments of a State that ratifies C.138 are:

(1) to pursue a national policy to ensure the effective abolition of child labour

(2) to raise progressively the minimum age for employment or work

Article 2

Each Member which ratifies this Convention shall specify, in a declaration appended to its ratification, a minimum age for admission to employment or work within its territory and on means of transport registered in its territory; subject to Articles 4 to 8 of this Convention, no one under that age shall be admitted to employment or work in any occupation.
Each Member which has ratified this Convention may subsequently notify the Director-General of the International Labour Office, by further declarations, that it specifies a minimum age higher than that previously specified.
The minimum age specified in pursuance of paragraph 1 of this Article shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years.
Notwithstanding the provisions of paragraph 3 of this Article, a Member whose economy and educational facilities are insufficiently developed may, after consultation with the organizations of employers and workers concerned, where such exist, initially specify a minimum age of 14 years.
Each Member which has specified a minimum age of 14 years in pursuance of the provisions of the preceding paragraph shall include in its reports on the application of this Convention submitted under article 22 of the constitution of the International Labour Organization a statement:

that its reason for doing so subsists;
on
that it renounces its right to avail itself of the provisions in question as from a stated date.

Article 2 Notes

Determination of a general minimum age upon ratification of the Convention (It could be raised later, but not lowered.):

the minimum age should not be lower than the age at which compulsory education finishes; and
it should not be less than 15 years

Flexibility clause for developing countries (para.4):

the general minimum age could be 14 years, initially;
Consultation with employers' and workers' organizations is obligatory, if this flexibility clause is to be used.
those countries that opted for this flexibility have to continue reporting (under art.22) whether the reason for doing so still subsists or not (para.5).

Article 3

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 or morals of young persons shall not be less than 18 years.
The types of employment or work to which paragraph 1 of this Article applies 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.
Notwithstanding the provisions of paragraph 1 of this Article, national laws or regulations or the competent authority may, after consultation with the organizations of employers and workers concerned, where such exist, authorize employment or work as from the age of 16 years on condition that the health, safety and morals of the young persons concerned are fully protected and that the young persons have received adequate specific instruction or vocational training in the relevant branch of activity.

Article 3 Notes

The obligation to fix a higher minimum age for hazardous employment or work

of not less than 18 years
It is up to the national decision what are exactly the types of employment or work to be prohibited as hazardous work.
Consultation with employers' and workers' organizations is obligatory, before the determination of the list of hazardous work
The absence of such a list signifies a non-fulfillment of obligation under the Convention.

Exception (not based on the country's level of development, and on strict conditions of sufficient protection and training)

from 16 years
Consultation with employers' and workers' organizations is obligatory, if this flexibility clause is to be used.
Conditions: 1) the health, safety and morals of the young persons are fully protected, and 2) they have received adequate specific instruction or training.

Article 4

In so far as necessary, the competent authority, after consultation with the organizations of employers and workers concerned, where such exist, may exclude from the application of this Convention limited categories of employment or work in respect of which special and substantial problems of application arise.
Each Member which ratifies this Convention shall list in its first report on the application of the Convention submitted under article 22 of the Constitution of the International Labour Organization any categories which may have been excluded in pursuance of paragraph 1 of this Article, giving the reasons for such exclusion, and shall state in subsequent reports the position of its law and practice in respect of the categories excluded and the extent to which effect has been given or is proposed to be given to the Convention in respect of such categories.
Employment or work covered by Article 3 of this Convention shall not be excluded from the application of the Convention in pursuance of this Article.

Article 4 Notes

(Flexibility clause)

Possibility to exclude limited categories of workers because of problems of application

Consultation with employers' and workers' organizations is obligatory, if this flexibility clause is to be used.
the list of excluded categories must be included in the first report on the Convention, with the reasons for exclusion (Exceptions cannot be added later.).
hazardous work as defined by Art.3 should not be excluded

Article 5

A Member whose economy and administrative facilities are insufficiently developed may, after consultation with the organizations of employers and workers concerned, where such exist, initially limit the scope of application of this Convention.
Each Member which avails itself of the provisions of paragraph 1 of this Article shall specify, in a declaration appended to its ratification, the branches of economic activity or types of undertakings to which it will apply the provisions of the Convention.
The provisions of the Convention shall be applicable as a minimum to the following: mining and quarrying; manufacturing; construction; electricity, gas and water; sanitary services; transport, storage and communication; and plantations and other agricultural undertakings mainly producing for commercial purposes, but excluding family and small-scale holdings producing for local consumption and not regularly employing hired workers.

Any Member which has limited the scope of application of this Convention in pursuance of this Article

shall indicate in its reports under article 22 of the Constitution of the International Labour Organization the general position as regards the employment or work of young persons and children in the branches of activity which are excluded from the scope of application of this Convention and any progress which may have been made towards wider application of the provisions of the Convention;
may at any time formally extend the scope of application by a declaration addressed to the Director-General of the International Labour Office.

Article 5 Notes

(Flexibility clause for developing countries)
Possibility to limit the scope of application initially

Consultation with employers' and workers' organizations is obligatory, if this flexibility clause is to be used.
This flexibility clause must be used at the time of ratification, and cannot be invoked later.
the exclusion relates to branches of economic activity (economic sectors) and types of undertakings
there are several sectors that must not be excluded:
mining and quarrying;
manufacturing; construction;
electricity, gas and water;
sanitary services;
transport, storage and communication; and plantations and other agricultural undertakings mainly producing for commercial purposes, but excluding family and small-scale holdings producing for local consumption and not regularly employing hired workers

Regular reporting to the ILO is required even on the situations in the excluded sectors.

Article 6

This Convention does not apply to work done by children and young persons in schools for general, vocational or technical education or in other training institutions, or to work done by persons at least 14 years of age in undertakings, where such work is carried out in accordance with conditions prescribed by the competent authority, after consultation with the organizations of employers and workers concerned, where such exist, and is an integral part of:

a course of education or training for which a school or training institution is primarily responsible;
a programme of training mainly or entirely in an undertaking, which programme has been approved by the competent authority; or
a programme of guidance or orientation designed to facilitate the choice of an occupation or of a line of training.

Article 6 Notes

(Exclusion of work done in the framework of training and education) The Convention does not apply to work done in:

Schools (general, vocational or technical) or training institutions; or
Undertakings (apprenticeship) by those who are 14 years or older,

if the work is:

carried out under conditions prescribed after consultation with the organizations of employers and workers concerned;
and an integral part of: (a) a course of education or training; (b) an "apprenticeship" type of training in an undertaking with a programme approved by the authority; or (c) a programme of vocational guidance or orientation.

Article 7

National laws or regulations may permit the employment or work of persons 13 to 15 years of age on light work which is

not likely to be harmful to their health or development; and

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.
National laws or regulations may also permit the employment or work of persons who are at least 15 years of age but have not yet completed their compulsory schooling on work which meets the requirements set forth in sub-paragraphs (a) and (b) of paragraph 1 of this Article.
The competent authority shall determine the activities in which employment or work may be permitted under paragraphs 1 and 2 of this Article and shall prescribe the number of hours during which and the conditions in which such employment or work may be undertaken.
Notwithstanding the provisions of paragraphs 1 and 2 of this Article, a Member which has availed itself of the provisions of paragraph 4 of Article 2 may, for as long as it continues to do so, substitute the ages 12 and 14 for the ages 13 and 15 in paragraph 1 and the age 14 for the age 15 in paragraph 2 of this Article.

Article 7 Notes

(Exception to the general minimum age concerning light work)

Light work means:

it is not harmful to the children's health and development, and
it would not hinder their education or training (not only as to the attendance at school, but the capacity to benefit from the teaching)

Light work may be permitted by national legislation:

for 13 to 15 years old

(for developing countries that have specified 14 as the general minimum age, 12 to 14 years old)

for those who are 15 years or older and have not yet finished their compulsory education

The government has to determine what activities could be allowed as light work, and also to prescribe working hours and conditions of work.

Article 8

After consultation with the organizations of employers and workers concerned, where such exist, the competent authority may, by permits granted in individual cases, allow exceptions to the prohibition of employment or work provided for in Article 2 of this Convention, for such purposes as participation in artistic performances.
Permits so granted shall limit the number of hours during which and prescribe the conditions in which employment or work is allowed.

Article 8 Notes

(Exceptions regarding artistic performances)

Artistic performances may be allowed as exceptions to the minimum age, by means of individual permits by the authority.

Consultation with employers' and workers' organisations is obligatory, if this flexibility clause is to be used.
The permits are given with the indication of the maximum hours and working conditions.

Article 9

All necessary measures, including the provision of appropriate penalties, shall be taken by the competent authority to ensure the effective enforcement of the provisions of this Convention.
National laws or regulations or the competent authority shall define the persons responsible for compliance with the provisions giving effect to the Convention.
National laws or regulations or the competent authority shall prescribe the registers or other documents which shall be kept and made available by the employer; such registers or documents shall contain the names and ages or dates of birth, duly certified wherever possible, of persons whom he employs or who work for him and who are less than 18 years of age.

Article 9 Notes

All necessary measures must be taken by the Government for the implementation of the Convention in practice.

in particular:

appropriate penalties must be provided for;
the persons responsible to comply with the national legislation must be defined in it;
registers to be kept by the employer concerning employees or workers whose age is 18 years or less.

Endnote

Between its sessions in Nov-Dec 1995 and in Nov-Dec 1996, the Committee of Experts has received 245 observations (13 by employers' and 232 by workers' organizations), compared to 153 observations received during the year preceding its 1990 session, for instance.

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