Report of the Committee on the Application of Standards
B. Observations and Information on the Application of Conventions
Convention No. 19: Equality of Treatment (Accident Compen-sation), 1925
Malaysia: Peninsular Malaysia (ratification: 1957), Sarawak (ratification: 1964).
See under Convention No. 97: Malaysia (Sabah).
Convention No. 26: Minimum Wage-Fixing Machinery, 1928
New Zealand (ratification: 1938). A Government representative stated that the Government of New Zealand was fully committed to the principles of the Convention and believed that it complied with the instrument in all significant respects. The labour inspectorate acted to enforce and promote the minimum wage legislation in the country and the minimum code of employment rights and obligations in general. However, general labour inspectors did not work in isolation. Workers, employers and their representatives were also able to enforce general terms and conditions of employment themselves through inexpensive, accessible and widely used employment institutions. The Government, therefore, considered many of the concerns of the Committee of Experts to be unfounded and would make a detailed response to all requests for information when its next report was presented. He nevertheless addressed briefly specific points raised by the Committee of Experts.
The Minimum Wage Act, 1983, had been introduced in New Zealand following the normal legislative process, which included the receipt by parliamentary select committees of submissions on proposed legislation from interested individuals and organizations. All interested parties, including employers' and workers' groups, had the opportunity to comment on the proposed legislation as part of the process. The New Zealand Council of Trade Unions, or as it was then known the New Zealand Federation of Labour, and the New Zealand Employers' Federation had been invited to provide submissions during the process. The level of the minimum wage was required by law to be reviewed annually and employers and workers enjoyed equal standing in making submissions on such reviews to the Minister of Labour. Submissions were sought customarily from the New Zealand Council of Trade Unions and the New Zealand Employers' Federation and were considered carefully. The written submissions were thoroughly considered as part of the annual review in the context of a range of factors influencing the effect of the minimum wage.
A youth minimum wage had first been introduced in 1994 to address concerns that young workers under 20 years of age needed the protection of a minimum wage. Its level had been set at 60 per cent after careful consideration of the need to balance the prevention of exploitation of young workers and the possible negative effects of a minimum wage on their employment opportunities. Young persons faced barriers to employment that older workers had generally overcome, including lack of experience and a higher training component in their work. A youth minimum wage, set at a lower level than the adult minimum wage, helped to offset some of the disincentives to employers of employing young people.
The Committee of Experts had expressed concern that not enough penal sanctions had been imposed compared to the number of alleged breaches of the minimum wage. The Government did not agree that a high number of penal sanctions was necessarily an indication of an effective enforcement regime. Indeed, it placed emphasis on the swift resolution of any violations of the minimum wage provisions. In most cases, the intervention of the labour inspectorate resulted in a quick recovery of wages for the worker involved. Workers or their representatives were also able to take penal action themselves in the employment tribunal. Nor did the Government agree that the number of labour inspectors was too low. The most efficient approach to an enforcement policy was to maximize the use of education and information to prevent violations. The labour inspectorate actively distributed information through a variety of sources and its toll-free telephone information centre provided information to over 160,000 callers a year, one-quarter of whom were employers. Other information outlets included government departments, citizens' advice bureaus, employers' and workers' organizations and an Internet website. The labour inspectorate was constantly reviewing ways to improve the provision of information. Moreover, it investigated all complaints made to it. A proactive inspection system, as suggested by the ILO, would require a very large number of inspectors and there was no evidence that it would be any more efficient than the current approach in enforcing the minimum standards. In conclusion, he reiterated the commitment of his Government to Convention No. 26 and his belief that the Government complied with the Convention in all meaningful and substantive ways.
The Workers' members noted the few elements of information provided by the Government representative, but thanked the Government for its detailed swritten replies to the comments of the Committee of Experts, which contributed to enriching the dialogue with the supervisory bodies concerning the application of a Convention to which the Workers' members attached great importance. They agreed with the Employers' members that minimum wage fixing was a fundamental aspect of the employment relationship, as shown by the conclusions of the Conference Committee following its examination of the 1992 General Survey on this subject. On that occasion, the Conference Committee had emphasized that collective bargaining was the most appropriate method of fixing minimum wages. It was only where the system of collective agreements did not cover all workers that additional machinery needed to be established. In this respect, it was particularly regrettable that New Zealand had not yet responded to the Director-General's campaign by ratifying Conventions Nos. 87 and 98. Convention No. 26, in the same way as Conventions Nos. 99 and 131, clearly showed that minimum wage fixing was a fundamental aspect of tripartism and free collective bargaining. Workers' and employers' organizations were not merely some of the parties concerned, as the Government's report tended to suggest. Minimum wage fixing was primarily for the social partners and should at the very least be based on the wages and criteria set out in collective agreements. As emphasized by the Committee of Experts, the consultation required by the Convention should give the social partners a real possibility of influencing decisions. The mere provision of information by letter was not sufficient to fulfil this requirement. This was a position of principle on which the Conference Committee had agreed during its discussion of the General Survey and which should be reaffirmed in connection with the present case. With regard to the minimum wage
for young persons, the Committee of Experts had been right to recall the principle of equal remuneration for work of equal value set out in the Preamble of the Constitution. Age in itself could not be a determining factor, and only the quality and quantity of the work performed counted. Not all young persons aged between 16 and 19 years were undergoing apprenticeship and they were not all less productive merely because of their age. The only factors that should be taken into account were the nature of the work and the capacity of those concerned. The questions raised concerning the application of the law in agriculture related broadly to the question examined in 1996 by the Conference Committee on the effectiveness of the labour inspection. The New Zealand Confederation of Trade Unions (NZCTU) had noted the very low number of actions taken by the labour inspectorate concerning non-observance of minimum wages. According to the information provided by the Government, during the period between July 1996 and March 1997, only one case had been brought before a labour court for the payment of wages due and there had only been two cases of penal sanctions for a total workforce of 1,688,000, of which many were employed in SMEs and agriculture. Admittedly, the effectiveness of the labour inspectorate could not only be measured in terms of the number of violations brought to justice and its preventive function should not be neglected. However, as noted by the Committee of Experts, the number of cases brought seemed very low. The Government should be urged to establish an effective and dissuasive system for monitoring observance of minimum wages which also covered agriculture and SMEs.
The Employers' members recalled that this was the first occasion on which the Conference Committee had discussed the application of the Convention by New Zealand and that its discussion was based on an observation by the Committee of Experts which had itself been occasioned by comments from the NZCTU to the effect that there was insufficient participation by the social partners in minimum wage fixing. According to the Government's description, this consultation followed a written procedure, prior to the decision by the Minister of Labour. The trade union considered that the social partners were not adequately associated with this procedure. The Committee of Experts had undertaken an analysis of the concept of consultation, which it distinguished from the mere provision of information in that it presupposed that the opinions put forward would be taken into account and would have an influence on the decision that was taken. The Committee of Experts had not reached a conclusion on the application of the Convention, but had confined itself to raising a number of questions. The Government representative had stated that replies would be provided to these questions. These replies should be contained in a detailed written report. One of the issues raised concerned the minimum wage for young persons. In this respect, the Committee of Experts had recalled the principle of equal remuneration for work of equal value, as set out in the Preamble to the ILO Constitution, and had considered that the quality and quantity of the work performed should prevail over any other criteria, which might be of a discriminatory nature. The reasoning was entirely right in principle, but left open the question of whether objective criteria existed which permitted different situations to be treated in a different manner. Nothing in the Convention prohibited the determination of different minimum wage rates. The Government should therefore be requested to explain the reasons why the minimum wage rate for young workers aged between 16 and 19 years had been set at 60 per cent. The Government should respond in a detailed written report. The Committee of Experts had also raised a question concerning the application of the minimum wage legislation in general. It had wondered whether it provided sufficient coverage to the persons concerned, whether the amount envisaged was actually paid and whether remedies were envisaged and applied in the event of violations. The Government had stated that broad publicity had been given to minimum wage rates through the press and toll-free telephone services, and that the labour inspectorate ensured their observance in practice. It had stated that the direct intervention of the labour inspectorate in the event of violations succeeded in most cases in resolving situations that were not in accordance with the rules, which explained the rarity of cases giving rise to sanctions. A final question raised by the Committee of Experts concerned the application of the minimum wage legislation in agriculture. Once again, the Government considered that the measures that were in force were adequate. In its conclusions, the Committee of Experts had referred to Article 4 of the Convention as a basis for considering that the number of penal sanctions was low in comparison with the number of breaches which had been alleged, although not proven. It was not certain what conclusions could be drawn from such an improbable ratio. Although the Convention called for the necessary measures to be taken, it did not specify that such measures had to include penal sanctions. It could also be argued that the rarity of sanctions bore witness to the effectiveness of all the other measures adopted to give effect to the law in practice. The Government should reply to the Committee of Experts on this point by setting out the reasons for the low number of proven violations.
The Worker member of New Zealand recalled that her union represented the lowest paid and most vulnerable workers in her country, many of whom were, in fact, “working poor”. This group of workers existed because of New Zealand's economic and labour law reforms. They depended upon a decent and enforced minimum wage. She believed that a failure to respect the principles of Convention No. 26 intimately affected the lives of these workers and their families, and felt that there was no genuine tripartism in New Zealand's minimum wage fixing. She illustrated her point with the cases of three workers: one paid the minimum wage on an hourly basis with the result of a variable take-home income; one who was paid the lower minimum wage for young workers despite the equality of her output as compared with other workers paid the normal minimum wage; and one who had been terminated for attempting to recover the difference between a sub-minimum wage she accepted in order to get a job and the established minimum and would now have to wait six to 12 months for her case to be heard. She observed that a hostile industrial environment and a climate of fear prevented workers from enforcing their rights. In combination with the great economic means and stamina required to pursue enforcement of their rights, most workers simply accepted sub-minimum conditions. The labour inspectorate was unable to respond to the level of enforcement required in this context. She agreed, therefore, with the Committee of Experts that 19 labour inspectors for the whole of New Zealand was insufficient to respond to the level of enforcement required and claimed that workers who sought their assistance were often told to come back later because no one was available to help. The Government further lacked the commitment to use all means available to inform workers of their rights. Workers in New Zealand were required to sign individual contracts at the time of their employment and in practice failed to take the time to review their terms for fear of losing the job offer. She pointed out that in the seven years since the introduction of the Employment Contracts Act she could not recall one television advertisement on workers' rights; nor, she claimed, had there been radio advertising or coordination with other organizations or educational institutions in disseminating information. She called on the Government to enforce minimum wage provisions, undertake effective education programmes, and discuss with the social partners all the issues raised in the Committee's discussion.
The Employer member of New Zealand affirmed that the New Zealand Employers' Federation was, like the Government, fully committed to the principles of Convention No. 26 and the enforcement of minimum wages in New Zealand. She maintained that the employers had been fully involved in the elaboration of the Minimum Wages Act passed in 1983. She wished to stress to the Committee that the obligation to consult both in establishing the minimum wage fixing machinery and periodically setting the minimum wage was not an obligation to negotiate. The Government was correct, therefore, in having considered in its annual review of minimum wage levels the overall economic position of the country and not just the interests of particular groups. She supported the differential applied in the youth minimum wage. Although she accepted the principle of equal pay for equal work she felt that its application should be weighed against the need to remove barriers to youth employment. Application of the adult minimum wage to unskilled young persons would act as a disincentive to their employment. She considered that penal actions were not generally appropriate, but should be used only in extreme cases of breach of the law. She favoured the Government's strategy of education intended to minimize the need for enforcement action, and pointed out that the Employers' organization had produced and distributed 20,000 posters describing minimum employment standards, and an additional 20,000 had been requested by employers in the agricultural sector. The employers' organization had also suggested to the Government that a publication describing minimum employment standards be mailed directly to new employers. In conclusion, the New Zealand Employers' Federation and its members supported the minimum wage, and the focus placed upon education as a means to enforcement, and, in instances of breach, upon recovery of unpaid wages.
The Worker member of Finland, speaking on behalf of the Worker members of Denmark, Iceland, Norway, Sweden and Finland, wished to focus his intervention upon the issue of tripartite consultation. He recalled the requirements for tripartite consultations appearing in Articles 2 and 3 of the Convention. This consultation required participation on an equal footing between the labour market partners, both at the time of determining the scope of the minimum legislation and the periodic review of the minimum wage level. He observed the reported practice of the Government in having requested submissions from labour market organizations and having considered them as only part of a more generalized review. This, he felt, was not consistent with the required consultation process as that process implied, according to the Committee of Experts, the possibility of workers' and employers' organizations having a real influence on the decision to be taken. He wondered whether the failure of the Government to meaningfully consult was grounded in misunderstanding of the requirements of the Convention, or, having observed that New Zealand had not ratified Conventions Nos. 87 and 98 nor the closely related Conventions Nos. 151 and 154, in its lack of political will. He hoped that the Government would not ignore the Committee of Experts' comments in this regard and invited the Conference Committee to ask the Government both to provide the requested information and to initiate and pursue tripartite discussions as part of the process of ensuring that the provisions and the application of the Minimum Wage Act were fully consistent with Convention No. 26.
The Worker member of Pakistan emphasized that to be genuine, consultation had to have some influence upon the decisions that were subsequently taken. Moreover, the consultation referred to in the Convention normally required an institutional framework in which workers' organizations were represented. The mere fact of seeking information did not constitute meaningful consultation. With regard to the minimum wage for young workers, he also drew the Government's attention to the need to apply the principle set out in the ILO Constitution of equal remuneration for work of equal value. With regard to workers in the informal and agricultural sectors, he reaffirmed the important role played by information activities and the labour inspectorate. Because such workers were not organized, they frequently did not benefit from the protection of the law and were therefore not in practice covered by the provisions of the Convention. Moreover since, as pointed out by the Worker member of New Zealand, the burden of ensuring the application of the minimum wage in her country fell mainly upon the workers themselves, the related problems were particularly severe amongst unorganized workers. It was for this reason, no doubt, that so few penalties had been imposed in comparison with the size of the workforce in the sectors concerned. He therefore endorsed the appeal made by the Committee of Experts for the Government to look into these important aspects of the application of the Convention with a view to ensuring meaningful consultations and the improved observance of its provisions.
The Worker member of Greece considered that the comments of the Committee of Experts were hardly flattering for the Government of a country which, although far from being underdeveloped, had not ratified Conventions Nos. 87 and 98 and did not even respect the Conventions that it had ratified. Claiming that youth on its own was sufficient to justify a minimum wage rate of 60 per cent of the normal minimum wage was a flagrant violation of the Convention. On the question of sanctions, there was no need for an in-depth legal analysis to reach the conclusion that two penal sanctions for 88 violations did not signify a real will to penalize cases of failure to respect the minimum wage. If a real will had existed, the country would have appointed more than 19 labour inspectors and the number of penal actions would have been greater. Real dialogue with the Government presupposed that it would respond to these questions.
The Worker member of Jordan considered that the issue of wage negotiation was set too frequently against the modern principles of the market economy. Economic requirements too often served as a false pretext for defending practices which amounted to the exploitation of workers. Minimum wage fixing through collective bargaining was essential to ensure a balance between the protection of workers and market requirements. It was particularly necessary in developing countries. Indeed, it was even more essential for migrant workers, who were sometimes prohibited from participating in trade union activities. Trade unions were therefore justified in requiring full application of the Convention.
The Employer member of Lesotho expressed the opinion that the setting of a lower minimum wage for young people served as an incentive to employers to employ them as low-paid workers. However, it was not clear from the Government's report whether such young persons worked shorter hours than ordinary workers. In this respect, he urged the Government to review the situation and comply with the fundamental principle of equal remuneration for work of equal value. Moreover, the Committee of Experts should request information as to the number of young people who were apprentices, since every worker was entitled to training to ensure higher productivity. In conclusion, he recalled that the employers and workers of the world had subscribed to the fundamental principles of the ILO. They should therefore assist governments to comply with ILO Conventions and undertake education campaigns to ensure that all employers and workers were aware of their content. The Government should supply the Conference Committee with information on the measures that it was taking to improve participation in tripartite machinery.
The Employer member of the United States believed that the conclusion reached by the Committee of Experts regarding the number of labour inspectors, in the same way as in the case examined by the Conference Committee in 1996, had ignored the positive results achieved by the Government, for example in reducing safety and health problems at the workplace. In 1998, the Committee of Experts had argued once again that there were insufficient inspectors on the basis of a low number of penal sanctions for breaches of the minimum wage over a very short period. However, the Government had adopted proactive programmes, including information activities and the availability of easy and direct means of seeking redress. As in many other countries, priority had been placed on resolving complaints at an early stage rather than applying penal sanctions. Moreover, experience elsewhere showed that an increase in the number of inquiries often followed the establishment of information facilities, such as the toll-free telephone system. The Committee of Experts should therefore take care to refer to facts and to raise the related questions. It was beyond its role to reach conclusions about the number of labour inspectors in a country. With regard to the question of consultation, he found it interesting that the Committee of Experts had defined meaningful consultation as having ”some influence on the decision“ in its 1992 General Survey on minimum wages, while in the 1982 General Survey it had stated that consultation should be able to have a real influence on the decision. It was not unusual for consultation opportunities to include input through a select committee process. However, involvement in a consultation process did not mean that the decision had to include the inputs or views of the participants. In conclusion, he recalled that some violations had undoubtedly occurred in many of the countries which had established a statutory minimum wage, despite the adequacy of their regulations and supervisory systems. He therefore hoped that the present case would be kept in its true perspective.
The Government representative thanked all of the speakers for their contribution to the discussion. As he had noted previously, his Government would provide a detailed response in its report to all the questions raised. In reply to two of the issues raised by the Worker member of New Zealand, he contested the assertion that there was a real lack of consultation with trade unions with regard to the minimum wage fixing machinery. He cited recent cycles of minimum wage fixing in which the minimum wage had been set in 1997 at a rate that was some 12 per cent higher than in 1995, despite an annual inflation rate of around 2 per cent and an increase over the same period of 7 per cent in both wages and the consumer price index. He noted in this respect that the Employers' recommendation had been for no rise in the minimum wage, while the trade unions had called for a 20 per cent rise. He therefore believed that the 12 per cent rise decided upon demonstrated the influence that the trade unions had exercised through the consultation process. With regard to claims that there was a lack of knowledge of the relevant provisions, he cited a recent survey carried out by a market research firm which showed that between 80 and 90 per cent of workers had a very good understanding of minimum wage and other provisions of labour legislation.
The Committee noted the information given by the Government representative, as well as the subsequent discussion. The Committee recalled the principle of genuine consultation as set forth in the Convention and expected that the Government would provide answers next year to the questions raised on this subject in the Committee of Experts' observation. Furthermore, the Committee firmly hoped that the necessary practical measures would be taken concerning the general application, including in the agricultural sector, of the minimum wage legislation, in particular by an efficient labour inspection system with sufficient staff, in conformity with Article 4, paragraph 1, of the Convention, and also Article 4, paragraph 1, of the Minimum Wage Fixing Machinery (Agriculture) Convention, 1951 (No. 99). Concerning the minimum wage of young workers, and recalling the general principle of equal remuneration for work of equal value in the Preamble of the ILO Constitution, the Committee requested the Government, for the purpose of fixing wages, to retain criteria not based on age, but on objective criteria such as the quantity and quality of the work performed. The Committee requested the Government to report in detail on the various points raised by the Committee of Experts, in particular on the practical measures taken or envisaged to fully comply with the requirements of the Convention.
Convention No. 29: Forced Labour, 1930
Bangladesh (ratification: 1972). A Government representative informed the Committee that Bangladesh was a small and poor country, its population being more than 120 million. The literacy rate for persons aged 15 and above, was only 35.3 per cent (1991), while the unemployment problem was very acute. The democratically elected Government had been trying very hard to take the appropriate steps in the production and service sectors for improving the overall condition of its working people. The Government was committed to removing discrepancies and irregularities in legislation and in practice.
He expressed his gratitude to the Committee for highlighting the legal restrictions on the termination of employment. In this context he mentioned that the Essential Services (Maintenance) Act, 1952, and the Essential Services (Second) Ordinance, 1958, were enacted long time ago, i.e., during the Pakistan period. Both pieces of legislations were in existence in Bangladesh but the practical application of the provisions were not generally in vogue. The National Labour Law Commission of 1992, formed on the basis of tripartism, had submitted a report. The report submitted by the Commission, including a draft Code was under study and review. The proposed Labour Code would be in conformity with the Conventions vis-à-vis the socio-economic realities of the country and the review committee would take care of the points raised.
Regarding the second point raised in the second paragraph on page 99 concerning termination of employment, there were 46 labour laws in the country, which contained sufficient protective measures. No worker was dismissed without benefit or notice. The Employment of Labour (Standing Orders) Act, 1965, protected the workers either in case of termination or dismissal. Dismissal from service was a lengthy process. Unless misconduct was established under sections 17 and 18 of the Employment of Labour (Standing Orders) Act, 1965, by an impartial committee, dismissal from service did not arise. A worker who was dismissed on the charge of misconduct had the right to appeal to the employer or could file a case against an employer in the Labour Court for judicial decision.
Concerning the point raised in the first and second paragraph on page 100 regarding the observation of the Convention in respect of children in bondage and child domestic workers, his Government was well aware of Convention No. 29. In Bangladesh, there was no forced or compulsory labour. Workers of all levels were at liberty to work or not to work. Labour laws were liberal to the workers and, as a result, employers faced problems when skilled workers left jobs without notice. Welfare of the workers and protection of rights of workers helped develop economic activities. Likewise, obeying rules and loyalty to industry were also equally important. Therefore, there should be a balance so that a sustainable economy could be established.
However, he indicated that the present Government was taking measures to review the Labour Code in the light of the present socio-economic conditions of the country, welfare of the working class, protection of rights and the interests of the employers so that the proposed Code served the purposes of the country. This was in conformity with the Conventions of the ILO.
Concerning the observations of the Committee of Experts in paragraph 4 on page 101, the words “bandha”, “chhuta” and “pichchis” as mentioned in this paragraph needed careful examination. The word “bandha” did not mean “tied down” as mentioned. “Bandha” workers normally engaged in a household were “regular” or “permanent” workers. Such workers had every right to continue work or leave work at his/her will and could leave the house and accept a job in any other house. Only those families who were economically in better conditions could employ such “bandha” workers. In addition, women who were divorced, widowed or had no place to stay, accepted such work since those jobs provided food, shelter, clothing, etc.
The word “chhuta” did not mean “non-bound” as mentioned in the paragraph. They were temporary or part-time workers. Such workers came at a particular time to a house and after one/two hours of work, left the house. They then went to another house nearby for part-time work. This meant they could earn higher wages.
“Pichchis” meant small boys or girls. Generally, their parents had no house or could not feed them or, for security, kept them in some other household. They lived like one of the members of the family. Sometimes, the owner of the house sent them to school or “madrassa” (religious education institution) for education. Therefore, they could not come within the definition of bondage. Parents could at any time withdraw such “pichchis”.
He underlined that it was important to realize why children worked as domestic workers, women worked as “bandha” workers and “pichchis” worked in houses. When food and shelter were the most important factors, these persons could not consider any other means of survival. His country was a labour-oriented country, most people were poor, the population was high and problems were of a different nature and multidimensional. Poor families having four/five children found no way but to keep their children in the houses of others for food, shelter and security. Poverty, the single largest contributor to child labour could not be removed immediately although the goal was the elimination of intolerable forms of child labour.
Therefore, he recalled that the main cause of child domestic workers was poverty. When economic activities accelerated and socio-economic development progressed, poverty would be progressively eliminated and child labour would disappear.
He urged the members of the Committee to understand these socio-economic conditions. His Government, international agencies, NGOs and voluntary organizations were working day and night at different levels and sectors for education, rehabilitation, eradication of poverty and the elimination of child labour. He hoped that his country would be able to reduce the problems to a considerable extent with the help and cooperation of international bodies.
He recalled that his Government was seriously discouraging child labour. The labour laws, especially the Factories Act, 1965, the Shops and Establishments Act, 1965, the Tea Plantation Labour Ordinance, 1962, the Road Transport Workers' Ordinance, 1961, etc. strictly prohibited child labour in the organized sector and provisions of punishment were envisaged in the respective labour laws. Therefore, there was no child labour in the organized sector.
He recalled that there were 2,642 garment factories in the country of differing size and more than 1 million workers were engaged in that industry, of which 80 per cent were female. At the initial stage, there were child labourers in garment factories. But after public awareness and the Memorandum of Understanding (MOU) signed with the ILO/IPEC, there were a number of projects (nearly 50) which existed in different parts of the country for the elimination of child labour and, as a result, public awareness was raised and child labour was being reduced.
The Bangladesh Garment Manufacturers' and Exporters' Association (BGMEA) signed another MOU with UNICEF and the ILO. Implementation of the MOU showed almost a 100 per cent elimination of child labour from garment factories. Under the MOU, a team had been formed taking members from the ILO, UNICEF and government inspectors. The team regularly visited and inspected garment factories, detected child labour and withdrew them from those workplaces. The team could take the child worker to school for education. The child worker who was withdrawn was given 30 taka per day and was provided with free education.
Referring to paragraphs 3, 4 and 5 on page 102 where physical abuse was mentioned, he stated that the present Government had the full political will to work towards the elimination of child labour as well as to take serious action against those who abused children and victimized them. A number of male and female family members had been arrested, cases filed in different courts and punishments were being given. As a result, people were careful about the abuse of child workers.
Referring to paragraph 3 of the observation of the Committee of Experts concerning trafficking, he declared that the Ministry of Women and Children's Affairs, in collaboration with the ILO/IPEC and UNICEF, agreed in 1997 to implement a country-wide programme on the trafficking of children and women. Continuous programmes were undertaken by organizing seminars, workshops, conferences, etc. in order to make people aware of the problem of trafficking, and the measures being taken to prevent it.
Without awareness, the eradication of poverty and serious penal action, trafficking could not be prevented. His Government was alert to this matter and action was being taken. In the ninth SARC summit held in May of last year, the Prime Minister, Sheikh Hasina, proposed a convention on combating crimes of trafficking women and children. A draft convention had since been submitted by Bangladesh for consideration by the member States.
Bangladesh had recently established a special cell under the Ministry of Home Affairs to intensify the Government's fight against trafficking of women and children. Action of the Government created a sustainable improvement in this field. In addition, voluntary organizations, NGOs and trade unions were also active in the matter and some important gang members had been arrested.
Referring to the paragraph of the report regarding non-payment of wages, forced overtime, non-holidays on Friday, etc., he clarified that there were remedies under the labour laws in the country.
There were 2,642 garment factories and 142 registered trade unions in such factories. There were at least three federations. Under the Industrial Relations Ordinance, 1969, registered trade unions had every right to collective bargaining under sections 26, 27, 30, 32, 34, etc. and accordingly they could solve problems. If direct dialogue with the management failed within ten days of raising demands, tripartite discussion, i.e. conciliation measures, could be taken. Conciliators, appointed by the Government, played roles to solve the problems through conciliation proceedings. Unions had every right under the law to declare a strike following the provisions. For the enforcement of rights guaranteed or secured to them, they could go to the labour courts for solution of the problems concerning wages, overtime, holiday, etc.
Besides, the government factory inspectors were there to inspect the factories, advise the management and file court cases against violators. The Labour Court conferred punishment or gave decisions as it deemed fit. Therefore, the trade union's allegation of non-payment of wages, non-holidays and compulsory overtime were not founded on facts.
Finally, he appealed to the Chairman and the members of the Committee of Experts to realize the problems and conditions of his country and to allow them time to improve the situation as they had full regard for the obligation to comply with the Conventions and ideals of the International Labour Organization.
The Employers' members recalled that at least three of the four points raised were well known in that they had been regularly the subject of comments by the Committee of Experts and had been discussed by this Committee in 1990. The legal restrictions on termination of employment for any person employed by the central Government, which was based on an unchanged pre-independence Act of 1952, were a clear violation of the Convention. The Government representative had referred to the protection from dismissal that these persons benefited from, but that was unrelated because one could not compensate a violation of the standards against forced labour by such a provision. For many years, the Government had been stating that it would take measures in this regard, but that the economic situation was preventing it from doing so. It must be required once again to take these measures that no difficult economic situation could justify. The second point concerned child domestic workers in bondage. The Committee of Experts referred to information brought before the Working Group on Contemporary Forms of Slavery of the United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities regarding children of underprivileged classes exploited as domestic workers in private houses and factories. If the protective legislation was not applied the Government's responsibility was put in doubt because Article 25 of the Convention required that effective penalties be enforced. The Government referred to the Memorandum of Understanding signed with IPEC and to projects implemented in this context. However, the United Nations Committee on the Rights of the Child had expressed its concern about the large number of children who worked, including in rural areas, as domestic servants as well as in other areas of the informal sector, in hazardous and harmful conditions, and who were often vulnerable to sexual abuse and exploitation. The World Confederation of Labour (WCL) had communicated a report concerning the various forms of domestic child work characterized by complete subordination, vaguely defined working hours and poor remuneration which amounted to forms of forced labour which had to be prevented. They referred to the Government representative's statement that domestic child labour of disadvantaged children could be seen more positively in that it at least permitted them to eat and to be sheltered in a situation of extreme poverty. If this were the case, the Government should then ensure that this type of work was performed under acceptable conditions and it should communicate detailed information on the measures taken in this regard in its next report. Concerning trafficking of women and children for prostitution, they recalled that the Government representative had stated that measures had been taken, namely preventive and educational campaigns, and that penalties were envisaged to put an end to it. They stated that United Nations' reports contained information regarding the extent of the problem which raised concern, and that the Government should therefore redouble its efforts to end the problem without failing to identify and punish those responsible. A fourth and new point concerned the situation in the garment industry. The Government had not had a chance to respond to the allegations brought by the WCL and the Committee therefore could not take a position on them at this stage. Regarding all the other points, they considered that the Government should amend its legislation and that it should increase its efforts to bring the law and, in particular, the practice into conformity with the requirements of the Convention.
The Workers' members thanked the Government representative for replying to the requests for information and recalled that the case had last been discussed in 1990. Some of the same issues raised by the Committee of Experts this year had been discussed by the Conference Committee on that occasion. In the current report, four issues were raised: legal restrictions on termination of employment; children in bondage, and particularly child domestic workers; the trafficking of women and children; and allegations concerning the situation in the garment industry.
The concerns of the Committee of Experts regarding legislative restrictions on persons employed in any capacity by the central Government to terminate their employment centred on the Essential Services Act, 1952 and the Essential Services Ordinance, 1958, which made it an offence punishable with imprisonment of up to one year for any person employed by the central Government to terminate his or her employment without the consent of his or her employer. The Government continued to maintain that other legislation, specifically the Factory Act, the Payment of Wages Act, and the Shops and Establishment Act, provided sufficient protection. But the Committee of Experts had pointed out, as had the Employers' members, that these provisions tended to protect workers who were dismissed and did not address the case of workers who, on their own initiative, wished to leave their employment. This aspect of the application of the Convention had been discussed by the Conference Committee in 1990, when the Government had stated that the repeal of the 1952 Act was under consideration. Now, eight years later, the Government was still saying that it was examining the legislation in question. The issues raised by the Committee of Experts seemed to the Workers' members to be quite clear and straightforward. They did not find the Government's response to be convincing and therefore wished to know when the Government would heed the advice of the experts and amend the laws to bring them into conformity with the Convention.
The Workers' members emphasized that the issue of child domestic workers was a very complex problem with a long history. In previous comments, the Committee of Experts had referred to information brought before the Working Group on Contemporary Forms of Slavery of the United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities, alleging that poor children were exploited in various ways, including as domestic workers in private houses, and that constitutional and legislative protections were not being implemented. The Committee of Experts had requested the Government to provide detailed information on the inspections carried out, the proceedings brought, the convictions secured and on the penalties imposed on those who exploited child labour. In response, in its latest report to the experts, the Government had denied that there was any bonded labour in the country. This denial was repeated by the Government representative today. Such denials contradicted the conclusion of the United Nations Committee on the Rights of the Child, in which it expressed concern about the ”large numbers of children who are working, including in rural areas, as domestic servants as well as in other areas of the informal sector“. The Committee of Experts had added that many such children were vulnerable to sexual abuse and exploitation. The Committee of Experts had noted a report forwarded to the Government for comment at the end of 1997 entitled Child domestic workers: Is servitude the only option? The report emphasized that live-in child domestic workers, usually between 8-16 years of age and predominantly female, were on call to perform a multiplicity of labour-intensive tasks, with endless working hours under the total control of their employers. The names given to these categories of workers are very revealing. For example, one category of domestic workers are called “bandha” which means “tied down” and another are called “pichchis” or “tiny ones”. While appreciating the explanations provided by the Government representative “in view of the vulnerability of children in such situations and the potential impact on the rest on their lives — the Workers' members strongly supported the request by the Committee of Experts that the Government take strong and effective measures to eradicate the forced labour of children as domestic servants. The third aspect raised by the Committee of Experts related to the trafficking of women and children, mostly for prostitution. Quite disturbingly the Government had conceded in its report to the Committee of Experts that the problem was getting worse and that some 200,000 women and children had been trafficked to the Middle East in the past 20 years. Other sources indicated that between 200-400 women and children were being smuggled out of the country every month, mostly to Pakistan. The Government had stated that it was taking measures to prevent such trafficking including the strengthening of border posts, but that well-organized gangs involved in trafficking had links with law enforcement agencies, which explained why only a very small percentage of the traffickers were caught and why few victims were recovered. The Workers' members considered this explanation to be insufficient given the lack of results in relation to such an insidious problem. At the least, the Government needed to find the political will to discipline every member of the police found to be involved in trafficking in any way. They fully supported the insistence by the Committee of Experts, that the penalties imposed by law should be adequate and strictly enforced. They therefore called for the Government to provide more information on this matter, and particularly on the number of those convicted, the penalties imposed and other clarifications.
The fourth issue concerned the situation in the garment industry, which employs over 1 million workers, mostly women and children. Very serious allegations had been made about the working conditions in the industry, such as that the legal minimum wage was rarely paid, that forced overtime was commonplace but was compensated below the legal rate, that the right of a worker for a legal holiday on Friday was ignored by employers, that workers who demanded it were dismissed and, finally, that workers could go months on end without receiving any salary. Detailed comments on these allegations were needed from the Government. The statement of the Government representative had been a beginning and they hoped that the Government would provide a detailed report to the Committee of Experts. Although it was not easy to know the true situation, useful information had been contained in the Annual Survey of Violations of Trade Union Rights, released a few days ago by the ICFTU. The Survey included information on one industrial area outside Dhaka where 30,000 workers were employed by subcontractors in the garment industry, most of whom worked 20 hours a day, seven days a week for very low wages. Furthermore, a growing number of garment factories were located in export processing zones (EPZs), in which unions were banned, despite Bangladesh's ratification of Convention No. 87 in 1972. The Workers' members cited a Bangladesh Export Processing Zone Authority advertisement entitled “For optimum profit, invest in EPZs of Bangladesh”. The list of incentives for investors included the following phrase “Bangladesh offers most inexpensive but productive labour force. The law forbids formation of labour unions in the zones and strikes are illegal.” In this connection, the Workers' members submitted to the Government representative that the best way to end forced labour conditions in the garment industry was to allow workers to represent themselves collectively, especially in EPZs, in compliance with the Government's obligations under Convention No. 87. In conclusion, the Workers' members emphasized that there appeared to be little improvement in the application of the Convention since the case had last been discussed eight years ago. They therefore called on the Government to increase its efforts dramatically to eliminate forced labour and report to the Committee of Experts before its next meeting at the end of the year on the measures taken and their impact in addressing the problem.
The Worker member of Bangladesh stated that, rather than bonded domestic workers, there were permanent or temporary domestic workers. The permanent workers were employed and paid on a monthly or yearly basis, while the temporary workers earned a daily wage and were free to leave their job at any time. There was also the category of chhuta workers, who worked in different houses and could even work in three or four such houses in one day. He emphasized that, after a 21-year period of autocratic rule, the country had achieved a democratic government only two years ago. The present Government was keen to protect the interests of workers, including full freedom of association. A tripartite commission had been set up to examine the issue of labour law reform and had submitted its conclusions recently. It was expected that some amendments would be required to the labour legislation. With regard to the issue of the trafficking of women and children, he stressed that a special unit had been set up by the Government to take serious action against traffickers. Warrants had been issued for the arrest of some of them and certain traffickers had already been put in prison. The matter had been publicized through the newspapers to encourage the public to come forward and identify those responsible. He added that the Government, together with the employers and trade unions in the country, was unanimous on the need to eradicate child labour. A number of projects had been implemented in cooperation with international organizations and he was pleased to be able to say that almost all the provisions of the Minimum Age Convention, 1973 (No. 138), were already implemented in the country and it was hoped that it would be possible to ratify that Convention in the near future.
The Worker member of Swaziland regretted that, according to the information provided by the Government representative, it would appear that no progress at all had been made in the application of the Convention. The Government representative had repeated the same story as on previous occasions. The Convention sought to address the freedom of individuals to terminate their own jobs when they so wished. The references made by the Government representative to protection against dismissal were therefore not relevant. Children were maintained in bondage in the country, in flagrant violation of the Convention, and were subject to ill-treatment, including chemical hazards, sexual abuse and exploitation. He reaffirmed that child labour was immoral, unjust and unacceptable and should therefore be eradicated in all its forms. In particular, bonded child workers did not benefit from any protection at all and had to be available to work 24 hours a day all year round. Any pay that they received tended to take the form of food, shelter or clothing, depending on the socio-economic status of the family to which they were hostage. He added that the trafficking of young children and women for the purposes of prostitution was inhumane and needed to be condemned in the severest terms. On the subject of the women and children engaged in forced labour in the garment industry, he described the very harsh conditions under which they worked, which included the obligation to carry out overtime and the inability to enjoy the traditional rest day on Fridays. According to the ICFTU survey of the country, the employers and the authorities conspired not to register trade unions. The right to organize was frustrated and the right to establish unions was refused for many categories. The registrar of trade unions also exercised broad powers to interfere in the internal affairs of trade unions and to dissolve them. Employers frequently refused to allow unions in their enterprises, as illustrated by the case of the President of the Bangladesh Employers' Association, in whose enterprise workers who had proposed the establishment of a union had been physically maltreated, with the result that some of them had died. All of these practices were unacceptable and needed to be condemned in the strongest terms.
The Worker member of Japan, agreed with the Workers' members and Employers' members, in insisting on the cardinal importance for the Government to meet its obligations under the Convention. Outlawing forced labour irrespective of the prevailing economic conditions had universal value. This Convention was ratified back in 1972 and no improvement had been noted since the last discussion in this Committee in 1990. He stated that he was obliged to note that the Government did not always meet its obligations. The situation of children in bondage denounced by the United Nations Committee on the Rights of the Child was particularly dreadful. He noted however that the Government continued to deny even the existence of children in bonded labour. The Committee was obliged to require the Government to quickly rectify the situation and to take concrete measures to this end.
The Worker member of the United Kingdom wished to comment on the problem of child labour in the garment industry. He believed that the matter was not entirely related to inadequate development or poverty but also to oppression and exploitation. He observed that the Bangladeshi garment industry had been promoted by the Government over the past two decades with its knowledge that the industry's boom had been achieved through the exploitation of children. He referred to practices in the industry of hiring the children of female workers, ignoring the national minimum wage with respect to both adults and children, and the taking of harsh disciplinary action against child labours. He explained that the Government now removed children from factories when cases were exposed, confirming that children continued to be employed in the industry. Steps had been taken in Bangladesh to improve the situation when condemnation arose as a result of exposés by the International Trade Union Movement and the withdrawal of contracts by western retailers. Sanctions of this kind appeared to have been more effective than moral or political arguments. Thousands of children continued to work in conditions akin to forced labour while thousands of adults continued to seek employment. The Government could not sustain any economic or moral argument for not applying the terms of Convention No. 29. The apparent willingness of the Government to allow continuation of the situation could only continue to be condemned. The Bangladeshi garment industry must take the necessary action to correct and prevent the current situation.
The Worker member of Pakistan emphasized that Bangladesh was a major nation with brotherly relations with Pakistan. He therefore associated himself with the hope that the social and economic situation of its people would improve. In this context, it was the duty of the Government to bring its law and practice into conformity with a Convention that set out fundamental rights. As noted by the Committee of Experts, bonded labour by children existed in the country in a number of areas, including domestic work and the garment industry. Women and children were also subject to trafficking for the purposes of prostitution. Great efforts needed to be made to eradicate these practices, not only through the enforcement of laws, but also through the allocation of greater resources to education and social and economic development in order to combat poverty. It was a social obligation to raise the population of the country out of its social and economic suffering. He therefore welcomed the projects on child labour undertaken in cooperation with IPEC and hoped that further ILO assistance would be provided to overcome these problems. He urged the Government to take urgent measures on all the points raised by the Committee of Experts.
The Government representative said that he had listened carefully to the points raised by the various members of the Committee and believed that in his first intervention he had replied to many of their questions. He emphasized that the democratically-elected Government had only come to power two years ago and that, although very many measures had been taken, it was not possible to solve all the problems of the country in such a short period. There could be no doubt that the Government did indeed have the intention of taking the appropriate measures and he appreciated the suggestions that had been made for the adoption of strict measures for the elimination of child labour. With regard to the registration of trade unions, the comments made by the Worker member of Swaziland bore no relation to reality. If any problems arose in the registration process, trade unions had every right to appeal to the courts, which could enforce their decisions. The power of the registrar to visit trade union premises was designed to ensure that they were fulfilling their functions, for example, with regard to the use of trade union dues. On the question of the laws which gave effect to the Convention, he pointed out that they had been enacted many years ago and that changes would be required to adapt them to the current social and economic conditions. With reference to the comments that had been made concerning the application of labour legislation in EPZs, he noted that such zones had been established as temporary measures, as in many other countries. The workers in EPZs could form their own associations and could bargain, even though they could not register their associations. In practice, workers in EPZs enjoyed better facilities and conditions than other workers. Indeed, experience showed that they made very few complaints about such matters as discrimination or the non-payment of wages. EPZs were a temporary measure designed to improve employment opportunities. They served as an inducement to investors to establish enterprises, which would ultimately have the effect of improving social and economic conditions in the country. In conclusion, he assured the members of the Committee that all the matters which had been raised would be communicated to the Government so that they could be taken into account in the new legislation that was being formulated.
The Committee took note of the information supplied by the Government representative and of the discussion which ensued. The Committee noted the information supplied concerning a legislative review, but regretted that there had been very little improvement in the situation of compliance, in law and in practice, with the provisions of this Convention in the areas singled out by the Committee of Experts for many years, namely the legislative restriction on civil servants employed in essential services from leaving their employment; the bondage situation of child domestic workers; and the trafficking of women and children mostly for prostitution. The Committee hoped that the Government would report in detail on the allegations concerning the situation in the garment industry. The Committee remained deeply concerned at the magnitude and seriousness of the situation. It noted the Government's explanation concerning various measures already undertaken, or in the process of being instigated, and hoped that further details would be provided in the next report to the Committee of Experts. The Committee noted that the Government representative had highlighted the problems of eliminating these scourges and stressed its commitment to eliminating exploitation of children and of women workers through its cooperation with such programmes as IPEC. In this regard, the Committee urged the Government to take, without delay, all the necessary measures to bring the law and practice into conformity with the Convention. It also urged the Government to report in detail to the Committee of Experts so that it would be in a position to note that concrete progress in law as well as in practice had been achieved in the application of this Convention.
India (ratification: 1954). A Government representative referred first to the identification of bonded labourers. The Committee of Experts questioned whether a comprehensive survey had been carried out observing that in the absence of such a survey there remained different estimates of their numbers. Noting that identification of bonded labourers had been disputed for a long time, the Government representative confirmed that the survey proposed by the National Sample Survey Organization had not been scheduled before 1998-99. Underemployment, poverty, illiteracy and the imbalance between the supply of and the demand for labour put this question in a different dimension. A survey revealing the position at any given moment could reveal another situation in the next moment, giving rise to conflicting claims and the impression that figures were inaccurate. For example, during the period between surveys, cases may surface because new labourers had gone into bondage. Thus, the impression could easily be given that any survey, no matter how comprehensive, had limitations in this socio-economic context. What was important was a continuous review of the problem and effective steps to address it. In India, those at the highest levels were alert to the problem of bonded labour. Earlier, 251,000 bonded labourers had been identified, of whom approximately 231,000 had been rehabilitated. The remainder had not been available for rehabilitation because they had died or migrated. Other important steps taken towards identification and elimination of the practice of bonded labour in recent years included the following: in August 1996 the Union Labour Minister wrote to the state-level Chief Ministers of 12 bonded labour-prone states giving detailed guidelines for the identification, release and rehabilitation of bonded labourers; in October 1996 the Union Labour Minister held a high-level meeting with state government representatives; and in May 1997 the Union Labour Secretary chaired a meeting to review the problem. The proceedings of meetings, since issued, contained detailed guidelines and directives about a survey for identification, release and rehabilitation of bonded labourers. The Supreme Court, in a decision dated 19 November 1996, directed all state governments to comply with the directives of the Central Government regarding the survey of bonded labourers by 31 December 1996. On this basis, the states had reported identification of an additional 29,000 bonded labourers. The Supreme Court, in its final order dated 10 November 1997, requested the National Human Rights Commission (NHRC) to take up responsibility for the monitoring and implementation of its directive on bonded labourers. These events showed that the Central Government, state governments and the Supreme Court were all actively involved and conscious of the problem of bonded labour and serious steps were being taken to identify and rehabilitate bonded labourers. The statistics provided here on the numbers of bonded labourers were those given by the states in their affidavits before the Supreme Court, which the Court had accepted. The Government had no reason to doubt the veracity of these statistics.
He recalled that this Committee had been informed in 1993 that a committee of state labour secretaries had been constituted to recommend a workable definition of bonded labour and modalities and procedures for their rehabilitation. The report of that committee (known as the “Chakrevarty Committee”) had been examined in detail by the Ministry of Labour and it had been felt that the report was more an academic treatise than a report based on field-level interaction. It therefore threw no new light on the definition established in judicial pronouncements. It had also been found that the Committee had not laid down any procedure or methodology for conducting door-to-door surveys for identifying bonded labourers. Moreover, on the basis of the analysis of its recommendations and, more particularly, keeping in mind the directives of the Honourable Justice of the Supreme Court in his judgement of 16 December 1983 in Bandhua Nukhi Narcha v. Union of India, the above-mentioned detailed guidelines were issued to all chief ministers of states in August 1996, and again in January 1997, concerning the definition of bonded labour and the methodology to be adopted for the identification, release and rehabilitation of bonded labourers. Regarding the complaint of the Mahabugnagar District Palamoori Contract Labour Union, it had been alleged that 600 Palamoori labourers had been engaged by a contractor and were working in conditions akin to bondage. This matter was taken up with the state government of Madhya Pradesh which reported that they were not bonded labourers but in fact contract labourers who had come to work of their own free will.
Concerning responsible bodies, the Government had for a long time considered setting up a commission on bonded labour. However, in the meeting of state labour ministers held on 18 May 1995, it had been decided, by consensus, that since the NHRC had been set up, there was no need for such a commission. The NHRC had full powers to deal with complaints on bonded labour. It could direct investigations, summon attendance of parties concerned on any matter relevant to the issue of bonded labour, and issue directives. The Supreme Court had also directed the NHRC to oversee the entire process of identification, release and rehabilitation of bonded labourers. The NHRC had obtained detailed status reports on bonded labour from the Ministry of Labour and had examined the officials of the Ministry of Labour on two occasions. They had also appointed an expert to inquire into and investigate allegations of bonded labour in four states. As regards the vigilance committees, 22 states had filed affidavits in the Supreme Court confirming that they had been set up in each district and sub-division. The report of the National Commission on Rural Labour (NCRL) had been noted by the Committee of Experts in 1991. Ministries of Labour issued detailed guidelines for the creation and reconstitution of vigilance committees wherever necessary as their term was for three years. Their work was overseen by state-level bodies, set up under the chairmanship of the Chief Minister. The Central Board of Workers' Education (CBWE) and the National Labour Institute had also been set up to create awareness among workers of the bonded labour issue. Rural labour training camps were being conducted for this purpose. During 1996-97 the CBWE had organized 1,802 awareness camps in which approximately 70,000 rural workers participated. Trade unions had not played a leading role in this regard so far. They mostly operated in the organized sector, while bonded labour mainly existed in the unorganized sectors of agriculture, plantations, brick kilns, stone quarries, etc. The Government would, however, welcome their involvement. In fact, the outline of a project to involve trade unions to mobilize and organize workers in the unorganized sector through workers' education was being worked out with the ILO. As regards the involvement of voluntary agencies, the Government had welcomed it, and had issued detailed guidelines to ensure the involvement of voluntary agencies through such institutional mechanisms as vigilance committees. There were also provisions in the scheme to give grants to those voluntary agencies which identified bonded labourers. According to available information, the State Government of Tamil Nadu had conducted a survey in association with an NGO in which 25,000 bonded labourers were identified. Kerala had entrusted a study on the rehabilitation of bonded labourers in some selected districts to the Institute of Social and Economic Change and the Gandhi Labour Institute. Concerning the Committee of Experts' comment regarding the time lag between liberation and rehabilitation, and its request for information on follow-up and relapse to bondage, the Government representative acknowledged the slowness of the process. This was due to a number of factors such as: bonded labourers were required to be issued a release certificate; landless and assetless, they were to be rehabilitated preferably through a group approach which involved bringing them to a common point and providing them with inputs for rehabilitation (land, credit, seeds, etc.) all of which involved time-consuming coordination. Nevertheless, the results were there: out of 250,000 or so bonded labourers identified by the earlier survey, 231,000 had been rehabilitated. Of the 29,000 fresh cases of bonded labour, the Central Government had asked for fast action by the states, and Tamil Nadu had responded with a commitment to rehabilitate 10,000 bonded labourers during 1997-98. The Central Government had released 30 million rupees for rehabilitation of 6,000 bonded labourers in 12 states; it had issued the details of guidelines to the states for integration of this centrally sponsored scheme into other ongoing anti-poverty schemes so as to pool the available resources for effective rehabilitation of bonded labourers. No countrywide assessment had yet been made on the integration and results thereof.
Concerning enforcement, section 16 of the Bonded Labour (Liberation) Act, 1976 set out the punishments for violation of the Act. It provided for imprisonment of up to three years and a fine of up to 2,000 rupees. To expedite justice, executive magistrates had been given the powers of judicial magistrates to try allegations of violations. Summary trials had been prescribed. Information on punishment given in respect of fresh violations of the Act was being collected from the states.
Concerning children in bonded labour, the Act did not make a distinction between adult and child bonded labourers. Information received from the states indicated that the problem of child bonded labour was marginal: out of 251,000 bonded labourers, the number of child bonded labourers was 3,300. Of the recently identified 29,000 new cases of bonded labour, information on the number of children involved was currently being collected from state governments and would be provided to the Committee of Experts as soon as available. Following the Supreme Court decision of 10 December 1996 in the case of M.C. Mehta v. the State of Tamil Nadu, a number of follow-up steps had been taken: state governments had been rapidly sent detailed guidelines, on 26 December 1996, indicating the manner in which the Supreme Court's instructions could be given effect; a meeting of the National Authority on the Elimination of Child Labour had been convened on 31 December 1996 to discuss the directives of the Supreme Court; on 22 January 1997 a conference of state labour ministers had been convened to finalize concrete action plans for the implementation of the directives; following that conference, state governments had been sent detailed guidelines for carrying out the surveys directed by the Supreme Court; lastly another conference of state labour ministers had been held on 7-8 July 1997 to review the action taken by state governments. It was found that most states had completed the survey and that the child labour rehabilitation-cum-welfare funds recommended by the Supreme Court were in the process of being constituted. In many cases, employers of children in non-hazardous occupations had been issued notices requiring that no child be allowed to work for more than six hours a day and obliging the arrangement of at least two hours' education for children at the employers' cost. Based on the information received from the states, an affidavit was filed in the Supreme Court on 5 December 1997 attesting to the fact that the first phase of surveys had been completed, except in Nagpur; 500,000 child labourers (below the age of 14 years) had been identified, of which 100,000 were engaged in hazardous occupations and 400,000 in non-hazardous occupations; states where employment of child labourers in hazardous occupations had been found had already initiated action for setting up district child labour welfare-cum-rehabilitation funds; in some districts, funds had already set up; in a number of states, separate units had been established so as to ensure enforcement and monitoring of the various provisions of the Act. The Central Government had initiated action to amend the Child Labour (Prohibition and Regulation) Act, 1986 to make it more effective on the basis of suggestions received from the states.
Regarding protection against sexual exploitation, the Government representative stated that the states had been requested to set up advisory committees for the eradication of child prostitution and to devise welfare programmes for them. Further information on this was not yet available from the states, but as soon as information was available it would be provided to the Committee of Experts.
The Employers' members noted that this case had been examined for the last ten years, most recently in 1995. In 1994 the Conference Committee had dedicated a special paragraph to the case in its report. They said that it was essential that information be ascertained as to the extent of bonded and compulsory labour, the exact responsible bodies and the situation of the rehabilitation measures for persons liberated from bonded labour. Moreover, the situation of children in bondage was a special and severe problem. Turning to the magnitude of the problem, they noted that different numbers had been indicated, but that until today no comprehensive survey existed: the Government had announced a number of 256,000 bonded labourers freed; other estimates referred to between 5 and 10 million bonded labourers. The Human Rights Committee of the United Nations had also observed a lack of effective measures to eradicate this problem. The Government had made reference to the States' responsibility to identify the magnitude of bonded labour and to release bonded labourers and also referred to meetings between the Central and state governments, but there had never been a final decision coming out of that. Moreover, state governments denied the existence of bonded labour and the Government waited for the outcome of the Supreme Court's decision before taking a final decision on the need for an all-India survey to ascertain the extent of bonded labour. The Government also had not replied to observations of NGOs on this subject. The Employers' members accordingly pointed out that the situation to start with was unsatisfactory and unacceptable. Turning to the question of who was responsible for dealing with this question, they stated that this also could not be clarified. Although the Act of 1976 abolished bonded labour and several supervisory committees had been established, these committees were not always active. Also it was not clear at all with whom the legislative competence laid, whether it was directly for the federal Government to create a legal framework or only in the event that the state government had not used its legislative competence. The Employers' members emphasized the necessity to have a clear assignment in terms of legal competence in order to establish a network of agencies to coordinate the abolition of bonded labour. In this respect, trade unions should be involved since bonded labour also existed in sectors covered by their activities. Nevertheless, all activities had to be coordinated and follow the same direction. Coming to the issue of rehabilitation, because of limited information, there was not a complete picture about the rehabilitation schemes to reintegrate bonded labourers. Some States had provided for the payment of a certain amount of money, others provided an allotment of houses and land, but these were only details which had not led to the establishment of a rehabilitation scheme valid all over India. Moreover, there was no information available with regard to legal proceedings and their outcome.
Turning to the very serious and unacceptable problem of children in bondage and other forms of compulsory labour, the Employers' members observed that the Government had not replied to observations received from the World Confederation of Labour in 1997 on bonded child labour. Although it was difficult to distinguish whether the situations described comprised bonded labour or other forms of forced child labour, particularly with respect to the most hazardous forms of work which had been performed under situations of constraint, no doubts appeared as to the existence of compulsory child labour on a large scale in the country. They welcomed the decision of the Supreme Court of 1996, according to which a number of actions had to be undertaken: withdrawal of children working in hazardous industries, establishment of a survey to identify children in hazardous industries and a contribution to a fund established for the education of children to be paid by offending employers of children in hazardous industries, employment to be provided to one adult member of the family of a child withdrawn from work and financial assistance for families of the children withdrawn from work. Turning to the problem of sexual exploitation of children and child prostitution, they noted that some welfare programmes had been established for children's care, protection, development and rehabilitation. However, information on the scope and implementation of these programmes was needed. In this connection, they noted that the Tata Institute had done some research on this subject which should be noted by the ILO. They also observed that the Human Rights Committee of the United Nations had deplored the extent of child prostitution. On the basis of the information available, they criticized the Government's not having supplied detailed information on this special problem. They noted that the Government representative stated that there was no information available on sexual exploitation of children. The Employers' members concluded by urging the Government to provide detailed information in particular on the magnitude of the problem; without it, no proper solution could be found. Although they recognized the Government's arguments and the difficulties resulting from the country's federal structure, they emphasized that the Government was responsible for implementing existing legislation in this field. A consistent and complete policy was needed in this regard.
The Workers' members indicated that despite the statement made by the Government representative of India, now and in previous years, the situation remained the same with very little evidence of any progress whatsoever after 14 years of discussions in this Committee. The Workers' members emphasized that the daily reality for millions of Indian citizens was that they lived under conditions of quasi-slavery with little or no hope that their lives would ever improve. The Committee of Experts quoted figures as high as 5 million adult bonded labourers and 10 million child bonded labourers. Some reputable groups claimed the figures were even higher while the Government admitted to only a fraction of this amount. It appeared to the Workers' members that the Government remained unwilling even to identify the dimension of the problem, let alone implement effective measures to address it. After all these years, there was still a great deal of scepticism on the part of the Committee of Experts, the Employers' members, and the Workers' members themselves that a comprehensive and effective programme had been put into place to eliminate bonded labour in compliance with the Convention.
In paragraph 3 of its report, the Committee of Experts identified itself with a very important observation made last August by the United Nations Human Rights Committee on considering the state report of India on the observance of the International Covenant on Civil and Political Rights. The Human Rights Committee observed that ”eradication measures which had been taken do not appear to be effective in achieving real progress in the release and rehabilitation of bonded labourers“. The Committee of Experts went on to urge the Government once again, in paragraph 7, to take “strong and effective measures to identify and release bonded labourers in the country and to gather statistics which will allow a reliable picture of the problem and the monitoring of the effectiveness of measures to correct it”. In this regard, the Committee of Experts noted that, in March 1995, the Supreme Court had ordered an independent survey to be done in 13 states to verify the claims of these states that bonded labour no longer existed in them and to determine whether the practice of bonded labour had actually been eliminated. Now, over three years later, the Government said that it was awaiting the outcome of the survey before deciding whether a national survey was necessary. The continuing lack of movement in even identifying the problem was of great concern. The Workers' members once again urged the Government to conduct a comprehensive national survey of the magnitude of the problem. They recognized that this was not an easy task and perhaps this was an area where the ILO and other international organizations could be of help.
The Committee of Experts had then addressed the issue of what government bodies were responsible for dealing with bonded labour, in paragraphs 8 to 11 of its report, expressing regret as it had in the past that “there is now no regular overview of the situation published by any government agency”. The issue of federal responsibility versus state responsibility was taken up here and elsewhere. This was an area of particular concern given the fact, as the Committee of Experts had noted, that “state governments have all taken the stand that there are no more bonded labourers to be identified, released and rehabilitated in their states“. Given this view of the states, it appeared that the national government needed help at the local level if it was to tackle bonded labour in any serious way. The Committee of Experts had continually asked for information on the functioning of vigilance committees required under the Bonded Labour System Act of 1976. Little new information had been forthcoming with the unavoidable conclusion that very few, if any, of the vigilance committees were functioning at all. Especially worrisome was the fact that the Committee of Experts had been informed by the Government of India that funding for voluntary organizations to fight against bonded labour had been transferred to the states. In paragraph 12, the Committee of Experts asked for information on how this was working. The information the Committee had was that very little, if any, funding had been provided to any indigenous NGOs with the expertise and the will to help the Government begin to tackle the problem.
Finally, in paragraph 11, the Committee of Experts found it necessary to again raise the issue of trade union involvement in ending bonded labour. As the Committee of Experts noted, bonded labour clearly existed in a number of sectors where workers had the right to organize, such as stone quarries, brick kilns, building and road construction, forestry, bidi workers and carpet weavers. Rather than resisting the involvement of trade unions in the effort to eliminate bonded labour in such industries, the Government was urged to view them as valuable and effective partners and to enlist them in the effort. The Government representative had said that his Government would move in this direction and the Workers' members hoped that it would.
The Indian Government continued to hold the position that a national commission on bonded labour to implement the 1976 Bonded Labour System (Abolition) Act was not necessary, arguing that this was the role of the National Human Rights Commission established in 1993. Yet in paragraph 9 of its report, the Committee of Experts indicated that very little information about the National Human Rights Commission had been forthcoming despite repeated requests particularly in the areas of what powers the National Human Rights Commission actually had and what action it had taken to implement the Bonded Labour System (Abolition) Act. It would be extremely helpful if the Government representative provided the Committee with much greater information than it had provided so far on what action the National Human Rights Commission had actually taken.
With regard to the issue of enforcement taken up in paragraph 17 of its report, the Committee of Experts noted that “the Government has indicated that no additional prosecutions have been brought because of the absence of any fresh identification of bonded labour”. The Government representative confirmed this in his comments. The lack of prosecutions had been put forth by the Government in the past as confirmation of its long-standing denial of the existence of bonded labour to any significant extent. For the Workers' members the small number of prosecutions raised serious doubts that the Government was committed to eradicating bonded and child labour at all. In addition, a number of the measures identified by the Government, such as the establishment of the welfare fund for the education of children working in hazardous industries, depended upon contributions made by offending employers. The fact that there had been little or no prosecutions suggested that contributions from offending employers had a long way to go before such schemes could have any real impact.
The issue of children in bondage and other forms of compulsory labour was taken up by the Committee of Experts in paragraphs 18 to 28 with the Committee of Experts concluding in paragraph 20 that “it does not appear to be in doubt that compulsory child labour exists on a large scale in the country”. Again the Government appeared to dispute this conclusion. Three years ago when this Committee last considered this case there was a great deal of concern expressed for the safety of Kailash Sathyarti, the leader of the South Asia Coalition of Child Servitude. Just prior to the 1995 Conference, Kailash had been imprisoned and had his life threatened for his denunciation of child labour in the carpet industry. Now, three years later, Kailash had led the Global March into the International Labour Conference last week and had spoken at its opening session. The Workers' members hoped that this kind of international attention would provide further protection to organizations and people like Kailash who worked in very practical ways, often at great personal risk, to eradicate child and bonded labour.
In paragraphs 25 to 27, the Committee of Experts dealt with the horrific problem of child prostitution and the trafficking of women and girls into forced prostitution. The Government representative indicated that he had no information to provide on the issue. Once again, the Committee of Experts shared the deep concerns expressed by the UN Human Rights Committee over the lack of effective measures to prevent such practices and to protect and rehabilitate the victims. Furthermore, the Committee of Experts endorsed the conclusions of the UN Human Rights Committee that forced prostitution was incompatible with Convention No. 29 and that provisions of the Immoral Trafficking Prevention Act, which among other things criminalized women who had been forced into prostitution and placed the burden of proof on a woman to prove she was not a prostitute, must be changed to be in compliance with Convention No. 29.
The Workers' members truly appreciated the complexities of this problem especially in such a large, highly populated and poor country as India. They understood how difficult it would be to eliminate bonded labour under such circumstances and that it would not happen overnight, but what they had been looking for over the past 14 years was, first, an acknowledgement from the Government of India that there was a significant bonded labour problem in India affecting not only adults but millions of children. And, secondly, they wished to see the Government of India put into effect a comprehensive and coordinated series of measures at the national, state and local levels which included the active involvement of trade unions, NGOs and employers, which corresponded to the huge dimension of the problem and, finally, which produced real and demonstrable results. Neither this Committee, during the previous seven Committee discussions dating back to 1986, nor the Committee of Experts had yet been convinced that any real progress had been made and, unfortunately, from the point of view of the Workers' members, they had heard very little today to indicate anything new.
The Employer member of India underlined that it was important for the Committee to understand the socio-economic situation prevailing in India, as well as the cultural background to have a better appreciation of the situation on Convention No. 29. He recalled that the comments of the Committee of Experts regarding the lack of effective measures adopted by the Government to eliminate bonded labour had to be seen in the context that India was a vast country and had a federal system of government. Labour was a concurrent subject, being the competence of the state governments as well as of the Central Government of India. Therefore, the Central Government had to obtain the information on the action of release and rehabilitation of bonded labour from the state governments which were the enforcing authorities.
He recalled that bonded labour did not exist and was not used in the formal sector but mostly in rural areas and in jobs of a casual nature. It was therefore difficult to identify the bonded labour which was quite often of a migratory nature, meaning that the Government did not have a reliable system of identification of bonded labour. However, he stated that the general awareness generated by the Government against engaging bonded labour had been quite broad and that the vast coverage had raised awareness about the punishment of persons involved in engaging bonded labour. This had a very positive impact. He strongly emphasized that employer organizations in India were against forced labour. The persons who were using forced labour were not members of employers' organizations and therefore they had no direct influence on them. He declared that it was not for the Government to involve the trade unions in the process of eliminating forced labour but that the trade unions should initiate action to organize the forced labour workers in informal sectors and make use of the government machinery in the elimination of forced labour. He believed that it was for trade union leaders to organize them to safeguard their interest since employers' organizations could not initiate the matter nor could the Government. He regretted that not many voluntary organizations were operating in the area of bonded labour.
He recalled that until bonded labour was identified, the process of rehabilitation would suffer. However, from the Government's report, he noted that where bonded labourers had been freed, the Government was spending 10,000 rupees per person for their rehabilitation. He suggested that the Government should arrange for some skilled training of the freed bonded labourers in order to make them employable.
He considered that child labour and bonded child labour were an issue for a separate committee at this Conference. However, he recalled that employers' organizations in India were strongly opposed to the use of child labour including child labour in bondage. On the other hand, he felt that the engagement of children in work by their parents on account of compulsion of economic necessities did not amount to the bonded labour of children and that such cases should be dealt with separately. Furthermore, he considered that the problems of child prostitution and trafficking of women and girls, while a serious concern which the Government as well as NGOs should take upon themselves to eradicate, should be dealt with separately since the problems and solutions were different from forced labour issues. He felt that international agencies should support the efforts made in India for the elimination of bonded labour with greater vigour. Finally, he expressed his optimism that the day was not far away where this problem could be resolved if the work was performed with commitment and cooperation by all concerned.
The Worker member of India, speaking on behalf of his organization, the Bharatiya Mazdoor Sangh which represented over 4 million workers, pointed out that the real causes behind the problem of forced labour were poverty and illiteracy and the fact that more than 40 per cent of 950 million people lived below the poverty line was a significant factor. He agreed that the Government had to play a role which in his view it was doing now. The Supreme Court had also come into the picture as had the National Human Rights Commission. The Central Government, as well as governments at the state level, and the judiciary were very sincere in their attempts to eliminate this problem. However, it had to be acknowledged that this was not a problem that could be eliminated in ten or 15 years. Patience was needed since it had only been 50 years since India had achieved independence.
The Worker member of Brazil, declared that he shared the concerns of the Committee of Experts concerning the persisting and serious problem of bonded labour in India which was of enormous proportions. The first step in order to resolve this problem was to identify the bonded labourers and gather all pertinent data including the reasons for the tardiness in solving the problem. The present Committee should urge the Government to conduct such studies and to formulate efficient policies aimed at freeing and reintegrating the workers concerned, and to increase the existing sanctions in national legislation. The Government should also accept to work in collaboration with the civil community and with trade unions and to rely on the expertise of the ILO multidisciplinary teams. This would enable it to gather information, to adopt appropriate national policies and to accelerate the resolution of this problem. The Committee should urge the Government to adopt the above-mentioned measures.
The Worker member of Zimbabwe indicated that although there was no agreement on the number of children or adults in bondage or in other forms of compulsory labour in India, it was quite clear from the evidence that bonded labour of children and adults existed and could be on the increase judging by the information on the extent of its magnitude. He considered that irrespective of the magnitude of the problem, bonded labour should be eradicated in all its forms, especially that of children. He felt that even if there was only one child held in bonded labour, this should be condemned. Furthermore, he felt that it was unthinkable to see such medieval practices in a country engaged in nuclear testing. Therefore, he urged the Government of India to take measures to strengthen the measures taken to ensure its full conformity with the provisions of Convention No. 29.
The Worker member of Germany referred to children in bondage and other forms of compulsory labour as representing a special and severe problem. He thought that the information provided by the Government had not been sufficient in view of the magnitude of the problem, considering that this problem did not include children subject to child labour who had received assistance from the ILO's International Programme on the Elimination of Child Labour (IPEC). Although the case had been pending for 14 years, full information had not been supplied to the Committee of Experts by the Government. In order to illustrate this lack of information, he mentioned three examples contained in the report of the Committee of Experts. The Committee of Experts was still asking for plans on future action regarding the “Identification, release and rehabilitation of bonded child labour”. Turning to the Government's order to establish an advisory committee for the eradication of child labour in all states, the Committee of Experts had not been informed whether these committees had been formed and what form their work had taken so far. Moreover, in the State of Uttar Pradesh, the state government had conducted a survey of the problem of alleged child prostitution without providing any results to the Committee of Experts. He once again reiterated the importance of Convention No. 29, in particular with a view to children in bondage and child prostitution. He therefore was of the opinion that the Government should be urged to supply detailed information in order to enable a full examination. He recognized the difficulties of many families in the socio-economic circumstances which forced them to raise a loan which often could be paid back only through child labour. However, since the Government had not acknowledged the existence of bonded child labour, it had to indicate whether the Supreme Court decision of 1996, quoted in the Committee of Experts' report, had been binding throughout India or only for the State of Tamil Nadu, and how many children had been sent to school after their liberation from bonded labour. Moreover, the Government should provide information on the number of employers contributing to the welfare fund established for the education of children who had been working in hazardous industries. Furthermore, he recalled the Government's statement referred to in the plenary of this Committee when its case had been examined in 1995, where it had promised to liberate 2 million children from hazardous labour by the year 2000. The Government therefore should be asked to what extent this promise had become a reality. He concluded by expressing deep concern as regards the Government's indication that no detailed information was available on the problem of child prostitution. Against the background of the observations made by the Human Rights Committee of the United Nations in 1997 and the findings of the Committee of Experts, this statement showed a lack of conscience on the part of the Government. He emphasized that the conclusions of the Conference Committee should show its deep concern over this situation.
The Worker member of Colombia stated that the Committee was yet again faced with a serious problem, namely the problem of bonded labour. Bonded labour constitutes not only a flagrant violation of Convention No. 29, but also of the most basic and fundamental human rights. There was no doubt that this abhorrent form of exploitation should be eradicated. Priority should be given to freeing children in such circumstances. Moreover, methods should be developed for the freeing of adults. He questioned whether the political will to eradicate this scourge existed, whether the employers were willing to strive towards such a goal, and what political economic policy had been envisaged which would ensure a proper distribution of revenues. He considered that a more detailed examination should be undertaken. In conclusion, he emphasized that the Committee should urge the Government to assume its role to protect children as well as adults from a form of exploitation which a large proportion of the population was subjected to and stressed that it would be otherwise difficult to talk of peace, democracy and development in the world.
The Worker member of Pakistan believed that since children were the future of the prosperity of mankind, what was needed to address this problem, especially in developing countries, was the allocation of more resources for the education and training of children. The system itself denied equal opportunities to the children of the poor. While the Government of India definitely had an interest in allocating more resources to the education and training of children in order to address the problem of child labour, there were also other parties in society who had resources which should be devoted to children's education. This problem, which had its origins in poverty and illiteracy, required a continuous and concerted effort on the part of the Government. One of the ways of solving certain aspects of the problem of child labour would be to follow the recommendations of the Committee of Experts.
The Government representative of India thanked the delegates for their various comments. Referring to a point raised by several speakers as to why no comprehensive survey had been carried out by the Government, he indicated that the Supreme Court had directed that a lawyer and a voluntary agency be entrusted with the task of carrying out this survey. Therefore, the Central Government was not in the picture with regard to the carrying out of such a survey. Moreover, it had accepted the fact that only 29,000 bonded labourers had been identified and the Supreme Court had accepted these figures. He therefore did not see the basis of bringing up a figure of 10 million. With regard to the working of the vigilance committees, he assured the Committee that they were operating in each district in India. The Supreme Court had entrusted the National Human Rights Commission, an independent body, with the responsibility of coordinating the abolition of bonded labour. Therefore, the entire problem was out of the hands of the Central Government and was now at the level of independent agencies.
Another Government representative pointed out that child labour was an issue that required great sensitivity. The newly elected Government was totally committed to the elimination of child labour. This was reflected by the fact that the budgetary provisions for education had been increased by the new Government in the budget recently presented to Parliament. However, the Central Government could not bulldoze state governments, who were sovereign, into considering this as a priority. She indicated that child labour, like bonded labour, could be found largely in the unorganized sector, especially agriculture. In this sector, a large number of children helped their parents carry out various tasks and therefore this could not be strictly termed as child labour. She emphasized that the two main reasons for child labour were parental poverty and illiteracy. Another cause was unemployment and underemployment, phenomena that were known to other countries as well. The fact that her Government was committed to solving this problem was reflected in the establishment of a number of poverty alleviation schemes. Moreover, a National Commission on the Elimination of Child Labour had been set up under the chairmanship of the Union Labour Minister. Her country had adopted a multi-pronged approach to solve this problem. The last, but perhaps most important, point was the issue of sustainability. Even if, for example, 100 million children were released from child labour, the problem would not go away if this could not be sustained and they went back to child labour. Finally, it was important to note that National Child Labour Projects had attempted to resolve the situation of around 100,000 children and that India was the first signatory in 1992 to the International Programme for the Elimination of Child Labour (IPEC).
Another Government representative pointed out that since labour was a subject with concurrent jurisdiction, the responsibility for the enforcement of the Bonded Labour System (Abolition) Act, 1976, was left to state governments. Due account had to be taken of the immensity of India with its wide disparities between different groupings along caste, class, ethnic, linguistic and other lines. It was difficult to paint Indian society with the same brush since it was a very fragmented society. While the fragmented nature of the society, the wide economic discrepancies and the lack of education contributed enormously to the problem of bonded labour, the lack of awareness of the affected persons also contributed greatly to this problem. In his experience, many bonded labourers did not have the capacity to realize that they were in bondage, and after having been released, often relaxed back into bondage. While this was not a justification for the existence of the problem, it was an explanation. He pointed out that the National Sample Survey Organization had estimated ten years back that there were 350,000 bonded labourers. This organization followed certain statistical principles which were very accurate. He was sure that since the intensity of the enforcement of the Child and Bonded Labour Acts had increased, there had been considerable reduction in this figure of 350,000 bonded labourers, although he was not sure of the exact number today.
The Worker member of the United Kingdom wished to draw attention to an international statistical figure, namely that over 100 million people in India had wealth greater than the average wealth of the population of Western Europe. This statistic was significant when discussing the continued problem of child labour and poverty.
The Workers' members recognized the immensity of the problem of child labour in a country as large and poor as India. Even in the United States, child labour appeared to be on the rise and there had even been some highly publicised cases, recently, of bonded labour. While poverty was one of the causes of child labour, it was not the only factor. Moreover, if lack of resources to combat bonded labour was such a problem, as was argued by the Government, then perhaps India should consider redirecting its priorities away from defence expenditures and testing nuclear weapons. The Workers' members reiterated that the Government should provide much more detailed information not only on the existence of vigilance committees but more importantly on what specific actions that vigilance committees have taken to reduce bonded labour and bonded child labour. They challenged the Government's contention that surveys ordered by the Supreme Court had uncovered only a small number of bonded labourers, citing the UN Human Rights Committee's conclusion that the incidence of bonded labour reported to the Supreme Court was far higher than reported by the Government. The Workers' members regretted the fact that the Government had tried to minimize a very serious problem, of which there was much evidence, and that it had provided little information in this respect. In view of the fact that there were few positive changes in the situation since this case had been discussed on previous occasions, the Workers' members asked the Committee to inject a sense of urgency in the Government to take action without any further delay by expressing its concerns over this case in the strongest possible terms.
The Employers' members referred to the answers given by the Government representatives during the course of the discussion which showed that the core of the problem was the identification of bonded labour. They observed that the figures given on bonded labourers had varied: 29,000 bonded labourers had been recognized by the court decision, but the Government representatives had mentioned a number of 350,000 bonded labourers. This also showed that the problem of bonded labour was in fact ignored. In this connection, the Employers' members said that it was not clear whether court proceedings followed the principle of party initiative which was the principle that the institution and conduct of proceedings were determined by the parties, so that only those facts provided by the parties could serve as a basis for the final decision or whether the decision had to be found on the basis of a determination of all facts by official legal process. Thus, applying one or the other principle accordingly had an influence as regards the finding of the number of bonded labourers.
Turning to the Government's indication on the difficult socio-economic situation in the country, the Employers' members said that they could provide some advice regarding the right use of economic resources but that this matter was not in the competence of this Committee. With respect to the implementation of federal laws at the state level, they stressed that federal influence was possible and that the trade unions should play a greater role in this respect. They once again made reference to the Tata Institute which could provide assistance concerning the determination of the magnitude of the problem. They ended with the statement that the Government's reply was not satisfactory and that therefore it should be urged to provide a detailed report on the subject-matter and on the questions raised in this debate. The Government should also make coordinated policy efforts with those concerned by problems of bonded labour.
The Government representative took note of the advice given by certain delegates, according to which less priority should be given to his Government's defence expenditures and indicated that this information would be duly reported to his Government. He further emphasized that the figure of 2 million children in bonded labour cited by certain delegates was wrong since this figure involved children working in hazardous conditions.
The Committee took note of the oral information supplied by the Government representatives and of the discussion which ensued. It noted with regret that this was a case which had been discussed in this Committee six times over the past decade and that, despite the Government's assurances of seriousness in attacking the problems, little progress towards full compliance with the provisions of the Convention had been achieved. The Committee urged the Government to respond to the points raised in the communication of the World Confederation of Labour (WCL) on bonded child labour. The Committee stressed that only through maintaining a dialogue and concrete and coordinated measures, could steps forward be taken. As regards bonded labour, the scope of the question remained disputed, yet the Government had carried out no new national surveys. Contradictory information was also before the Committee of Experts about whether the vigilance committees, which were supposed to be set up under the 1976 Bonded Labour System (Abolition) Act, were actually functioning. Enforcement in general remained moot and it should be clarified which exactly were the responsible bodies in this area. The Committee noted with deep concern that the situation of children in bondage and other forms of compulsory labour had not considerably improved, despite the Government's stated commitment to eliminating it, as demonstrated by its work within the ILO's International Programme on the Elimination of Child Labour (IPEC). The Committee also regretted that the Government representatives were not able to give the details requested on the protection against sexual exploitation of children. The Committee expressed its deep concern regarding bonded labour as well as regarding children in bondage and urged the Government to step up its actions, and to report in detail on any progress made at national, state and local levels in a comprehensive report to the Committee of Experts.
Sudan (ratification: 1957). A Government representative emphasized that the comments of the Committee of Experts on the application of the Convention in the country had clearly been based on the findings of the United Nations Special Rapporteur on the human rights situation in Sudan. In this respect, he stated that, in verifying the allegations about slavery and related practices, the Special Rapporteur had made no effort other than maintaining his previous position, citing provisions from the relevant international instruments and criticizing the investigations carried out by the Government. Such reporting deserved no other response than to recall the replies submitted by the Government in the past. However, he reaffirmed that the Government had adopted a serious attitude and was genuine in investigating all allegations of slavery and related practices. After the Special Rapporteur had left the country without travelling outside Khartoum, the Government had therefore received Lord McNair of the British House of Lords to investigate the allegations by visiting many relevant locations.
He informed the Committee of the conclusions of Lord McNair's report. Lord McNair had arrived at the conclusion that there was something contrived about some of the allegations, which suggested a deliberate campaign in some quarters to discredit the Government. In October 1997, he had visited a number of locations in the States of Northern and Southern Kordofan, the site of many of the allegations. On that occasion, he had found no evidence of slavery. However, the main concern of community leaders had been for the hundreds, if not thousands, of Nuba and Arab children abducted by the Sudan People's Liberation Army (SPLA). Indeed, the abduction by the SPLA of over 10,000 children over the past decade was a more tangible manifestation of slave-like practices than any of the other allegations. The plight of these children had been documented by the United States State Department, Human Rights Watch/Africa and the Children's Rights Project, among other organizations. The ICRC had been seeking the release of the children for a number of years. Moreover, the United States country reports on human rights practices had stated in the past that any slave-like practices which existed were the result of the civil war in southern Sudan and that they were concentrated in areas in which the government administration was weak or non-existent, and particularly where displaced persons fleeing the war zones came into contact with armed groups. It was acknowledged in this respect that Sudanese law was clear in unambiguously criminalizing any slave-like practices, such as kidnapping, abduction, unlawful detention, forced labour and unlawful confinement, and punishing them by imprisonment. It was therefore clear that the Government, from its earliest days in power, had been responsive to instances of abduction and kidnapping brought to its attention. Anti-Slavery International had documented decisive action by the Government in response to the capture of Dinka children in the course of inter-tribal fighting. Anti-Slavery International had also recorded cases brought by the Dinka community in which the court had ordered the release of the children in question. Other reports of direct government intervention to secure the release of illegally held people included the Human Rights Watch/Africa's 1996 study Behind the red line: Political repression in Sudan, which reported action to free 500 women and children who had been taken prisoner during fighting between tribal militias. There was therefore clear evidence, as recorded by reputable human rights organizations, that the present Government had intervened to free victims of inter-tribal raids and violence, many of whom had been illegally held since the days of the Sadig-al-Mahdi Government. There was thus no foundation for the allegations of slavery levelled at the Government. For example, Alex de Waal, Co-Director of African Rights, had stated that there was no evidence for centrally organized, government-directed slave raiding or slave trade. Anti-Slavery International had stated t
hat the charge that government troops engage in raids for the purpose of seizing slaves was not backed by evidence. Lord McNair therefore concluded that, what had been true in 1992 in so far as the United States Department of State was concerned, continued to hold true for the country at the present time. Moreover, he regretted that the most prominent allegations that certain persons had been brought to the country and bought slaves were unsubstantiated and sensationalist. It had been recognized that the so-called buying of slaves had most probably consisted of the payment of a ransom to a go-between by families redeeming their hostage children or other relatives who had been abducted during the inter-tribal raids and conflict which had spiralled in the country as a result of the continuing civil war. These false claims merely fuelled the propaganda that had blighted Sudan over recent years. The absurdity of the claims had been illustrated during a fact-finding visit undertaken personally by Lord McNair to a Christian community in North Kordofan, where a respected priest had confirmed that he had no evidence of the allegations of slavery, but had merely heard reports from the media.
The Government representative also informed the Committee that the mandate of the investigation commission on the allegations of slavery had remained open-ended and that the Advisory Council on Human Rights had appointed a resident representative for the Council in Kordofan. Moreover, since the discussion of the case by the Committee last year, there had been a number of political and constitutional developments. Peace talks had been held in Nairobi in May 1998, resulting in an agreement on self-determination for southern Sudan. This principle had been enshrined in the new Constitution, which would be subject to a referendum during the course of the month. It was to be hoped that these developments would bring an end to the protracted civil war, which was one of the main reasons for the issue in question. The investigation commission badly needed the assistance that had been requested from the ILO, since it was working within the limited technical and financial resources of the Advisory Council for Human Rights. As a priority, the technical assistance requested therefore included training, office equipment, means of transport and of communication. He understood in this respect that the Office was available for further discussions to identify the forms of assistance that it would provide to strengthen the work of the investigation commission. In conclusion, he emphasized that the Government was prepared to inform the Committee of any future development on the issue and of the work of the ongoing investigating commission, in its conviction that dialogue was more productive and fruitful than confrontation.
The Workers' members recalled that the Committee had held a difficult discussion of the case last year and had included it in a special paragraph in its report as a case of continued failure to implement a ratified Convention. Additional information had now been placed before the Committee, both in the form of a detailed government report and from the United Nations Special Rapporteur on the situation of human rights in Sudan. Information had also been provided by the World Confederation of Labour. The available information indicated that there were serious problems in general in respect of human rights in the country. There were convincing allegations that slavery existed and the Government had established an investigating commission to look into them. However, the Committee of Experts had expressed concern that the Government's investigations had led to conclusions which were profoundly inconsistent with the other sources of information available, at least as regards the part of the country over which it had effective control. There was therefore extensive and credible evidence of the existence of slavery in government-controlled areas. More effort was therefore needed to identify and eliminate it. There was no doubt as to the existence of slavery and forced labour in other areas of the country, although its extent was unclear. The Workers' members also noted that, as reported by the United Nations Special Rapporteur, many raids had been carried out by the Popular Defence Forces (PDF) and the National Islamic Front (NIF) in certain areas of the country since they had seized power in a military coup in 1989. Many of the slaves taken had been subjected to physical and psychological torture, including rape and beatings.
The Workers' members noted that, as the Committee had suggested, the Government had requested assistance from the Office. However, the request for assistance had simply been for vehicles to assist the investigating commission. The Government should therefore be urged to request more substantial assistance with a view to establishing unbiased factual evidence. The Government should also be requested, as called for by the Committee of Experts, to undertake effective action to secure the observance of the Convention and to report on the concrete measures taken. In this respect, while noting the information concerning the efforts to secure a peaceful settlement to the civil war, the Workers' members emphasized that the situation of war in the country did not justify slavery and slave-like practices anywhere on the national territory, and particularly in areas over which the Government had control. In the light of the serious continued violations of the Convention, the Committee should include the case in a special paragraph of its report.
The Employers' members emphasized that this was the fifth occasion since 1989 on which the Committee had examined the case. At the beginning, the Government had rejected all the allegations. It had later indicated that there were other causes for the problem. Furthermore, it had always denied allegations of slavery in the territory that it controlled. The Government representative had cited a report by a certain Lord McNair. A report of this nature should have been provided in writing to the Conference Committee so that it could have been examined more fully. Nevertheless, the fact remained that there had been many credible reports over the years confirming the existence of slavery and slave-like practices in the country, including the information provided by the United Nations Special Rapporteur. A number of these reports suggested that the Government tolerated and even encouraged and participated in such practices, for example, through the Popular Defence Forces and other groups. According to the reports, slaves were sold and exchanged, particularly in the south of the country. It was no great surprise to the members of the Committee that the investigation commission set up by the Government had contested the existence of slavery. Although the ILO had offered technical assistance, the response had already been described by the Workers' members. The Employers' members were well aware of the situation in the country, where a war was being conducted which was not really a civil war, but operations to gain control over certain parts of the country. In its denials of the allegations of slavery, the Government made use of the situation in the country to claim that the alleged practices were the fault of the rebel forces. The practice of slavery certainly existed in the country, in violation of the Convention, although it was difficult to tell whether or not it was organized. However, it was certain that too little was being done to resolve the problems that existed. The Government should therefore be urged to take the necessary measures to resolve a situation that was totally unacceptable.
The Employer member of Sudan contended that the issue under examination was extremely sensitive and serious since it cast doubts on the moralities and beliefs of the Sudanese people, as slavery was an extremely abhorrent practice. Thus, while examining this issue, the Committee needed to be judicious and wise. It was clear that the issue was simply the result of a war that had been inflaming Sudan for the last 15 years. The Committee would have to reach conclusions in order to resolve the problem which was twofold. One aspect related to the situation in the war zones where, in effect, information was indeed scarce. The second aspect related to the area bordering on the war zones. Here, various tribes migrated leading to tensions with other tribes, in turn leading to hostage-taking by each other. While each tribe took its own hostages, it was exaggerated to talk about slavery in Sudan. If one were to talk about a slave trade, this implied the existence of a slave market which, however, was non-existent in Sudan. The goal of this Committee should be to encourage all warring parties to resolve peacefully their differences.
The Worker member of Sudan considered that the accusation of slavery and slave trade was being levelled at the Sudanese people and not at the Government. He pointed out that the report of the Committee of Experts was based on the report of the United Nations Special Rapporteur who had not even visited the regions concerned. This report was also based on the report of Baroness Cox who had not visited the regions concerned either. There was definitely a problem in Sudan but it was not that of slavery or human enslavement, but that of a civil war which was engulfing the whole country. This Committee should talk about the assistance it could provide to the warring factions instead of discussing a slave market that did not exist.
The Worker member of Italy declared that following the long discussion of last year he would have been justified in hoping that progress would have been accomplished but unfortunately this was not the case. He considered that the state of civil war in Sudan was not a sufficient justification to violate Convention No. 29. He emphasized that the conclusions by the United Nations Special Rapporteur evidenced the seriousness of the permanent violations of Convention No. 29 and confirmed the need to apply all the instruments of the United Nations and other organizations with the same aims. He mentioned that paragraph 3 of the comments by the Committee of Experts referred to extreme forms of exploitation of children and the use made of children in para-military groups as well as to forced labour and sexual exploitation of children. He indicated that the International Organization for Christian Solidarity had even demonstrated the existence of slave markets for children as well as their market price. It should also be noted that the conditions of forced labour mostly affected the tribes of the South and certain other tribes from the Nubian heights. He considered that the Government should inter alia: encourage the activities of the National Consultative Council on Human Rights set up in 1996 as a follow-up to a resolution by the General Assembly of the United Nations; not impede the initiatives by international organizations offering assistance; immediately extend the protection to children touched by the war and halt the extreme forms of child labour.
The Worker member of Swaziland asserted that this case was about the most inhuman practices, slavery and the slave trade; forced labour; and the trafficking of women and children for sexual enslavement. These were crimes against humanity and unacceptable in any civilized society. The Government of Sudan had a duty to protect its citizens irrespective of age, gender, status or religion. The Government's reply demonstrated intransigence and a high degree of apathy for its citizens. The Government unilaterally and arbitrarily appointed Lord McNair, whose CV was unknown and whose terms of reference were not defined. All that was known of him, according to the Government's submission, was that he lived in Sudan in 1994 and was entrusted with the task of writing a report on the situation in 1997, which ended up being biased and in favour of the Government. The credibility of his report was all the more dubious due to the time taken to produce it. Sudan was the biggest country in Africa and it was miraculous that Lord McNair was able to complete his report in ten days. While the Government denied that there was a slave trade in Sudan on the basis that there was no slave trade market there, it did not deny that there were middlemen who were not using the official markets. It was also very contradictory on the Government's part to say on the one hand that cases of abduction and slavery were occurring in the conflict area over which it had no control, when on the other hand it knew precisely about 299 cases of disappearances in the same area. Before the Committee concludes on this case, it should consider that Sudan had ratified this Convention more than three decades ago and that the Government had deliberately avoided setting up an independent inquiry over these allegations. The Government deserved to be mentioned in a special paragraph for failure to comply with this Convention.
The Worker member of Turkey regretted deeply to have to discuss a case of serious allegations concerning slavery, servitude, slave trade and forced labour where the government forces and the militia were involved directly in such acts on the eve of the twenty-first century. Although the distinguished Government representative of Sudan had repudiated all the observations by credible institutions such as the United Nations, Amnesty International and Anti-Slavery International, he considered that the Committee had not been presented with a convincing argument to the contrary. In the reports of the credible organizations, the observations were substantiated by names of the victims, by details about the sale of slaves and about redemptions. For instance, one such organization claimed to have redeemed 800 Sudanese and had returned them to their families. The slaves were claimed to have been redeemed for US$133 in 1997 or for cattle, the exchange rate being about ten heads of cattle per slave. He felt that there was considerable smoke and evidence of fire, according to reliable sources. He declared that if the distinguished Government representative of Sudan had acknowledged sporadic cases of slave-like practices and had called upon the international community and the ILO for cooperation and support for the eradication of this satanic evil, he was sure that he would have been reciprocated with the best of intentions and good will. However, the categoric repudiation expressed in the Government's report and the intervention of the distinguished Government representative, unfortunately, did not create the intended outcome. Well-grounded allegations concerning slavery in Sudan exhibited a situation that was much worse than the once-apartheid regime in South Africa. Therefore, he felt that the United Nations and the ILO had a considerable role to play in this respect. He supported the proposal to award a special paragraph to Sudan and called upon the representatives of the Governments in this hall to take a firmer stand than had been taken against South Africa during the period of apartheid, until there were no more serious allegations of reputable international organizations concerning slavery and forced labour in Sudan.
The Government member of the United States speaking on behalf of the Governments of Canada, Denmark, Finland, France, Germany, Iceland, the Netherlands, Norway, Portugal, Sweden and the United Kingdom expressed the concern of the above-mentioned Governments on the overall human rights situation in Sudan. Among Sudan's numerous human rights problems were persistent reports of slavery and nothing in the government statements had diminished the concerns over this issue. It was difficult to gauge the extent of this terrible practice in Sudan since the Sudanese Government denied its existence, but refused to allow international access to areas of conflicts where slavery was reportedly most frequent. Notwithstanding some recent positive developments concerning the repatriation of individuals to Uganda, Sudanese people, notably women and children, continued to be abducted by those fighting on the side of the Government in the civil war. There were also reports that rebel groups had abducted women and children. Those abducted by the government side were used for forced labour as soldiers and as household servants. Reports also mentioned that some of them had been sexually abused. The lack of clarity of the situation on the ground could only be lifted by the Government allowing international observers to visit the country and ensuring that they had access to all regions. Furthermore, he declared that the above-mentioned governments, as well as his own, had repeatedly expressed their deepest concern over slavery and other human rights abuses in Sudan and continued to call upon the Sudanese Government to stamp out slavery and similar practices in whatever form they occurred. He urged the Government of Sudan to take all necessary steps to demonstrate respect for the rights articulated in the Universal Declaration of Human Rights and he joined the Committee of Experts in urging the Government to take effective action to secure the observance of Convention No. 29 and, in particular, to report on the concrete measures adopted including information on any cases brought to justice, the number of convictions made and the penalties imposed.
The Worker member of the United Kingdom stated that a Sudanese human rights team had given the Sudan military regime a clean bill of health with regard to forced labour, slavery, servitude, slave trading or any similar practices. He noted that the conclusions of the Government's commission were completely at odds with the findings of the Committee of Experts and the ILO Conference last year when a special paragraph was awarded against Sudan. The distinguished experts this year had been most robust in underlining the profoundly inconsistent account given by the Sudanese Government on the issue of forced labour. At no time had the Government detailed any positive action it was prepared to take to responsibly combat the exploitation which this Conference had condemned last year. He emphasized that denial did not remove the existence of inhuman practices and that it would be insulting to suggest there could be any cultural misinterpretations of the descriptions of forced labour and slavery. He recalled other speakers had registered their dismay at the refusal of the Sudanese Government to address these issues. He quoted the statement of the United Nations Rapporteur: “the whole range of human rights recognized by the United Nations has continuously been violated”. He restated that the Government's position and its denials were totally unacceptable and he requested that his objections and requirements be registered in the strongest possible terms available to this Committee.
The Government representative acknowledged that this case had been discussed on several occasions since 1989. However, his Government had always attempted to respond to the observations of the Committee of Experts. This time his Government had given an exhaustive reply to the various questions of the Committee of Experts. With regard to the statement made by the Workers' members, he welcomed the moderate nature of their comments. He assured the Committee that the Government was sparing no effort to take effective measures. It was ready to make progress through a Special Investigating Commission established by the Ministry of Justice by an order of 4 February 1996. With regard to the statement made by the Employers' members, the speaker felt that they should have shown more tolerance since the discussion could have been more positive. Although the Employers' members indicated that nothing new had been added to the debate in view of the lack of information, this was not true since Lord McNair's report contained such information. The Employers' members' assertion that the Government had in fact regressed was not true since a National Commission for Human Rights had recently been set up by the Government. The Employers' members had indicated, wrongly, that there was no civil war in Sudan but rather a war waged by the Government against certain segments of the population. Moreover, while a certain number of Workers' members had made a number of wrongful assertions, these were excusable since they were based on the report of the United Nations Special Rapporteur. Finally, he concluded by indicating that his Government was entirely at the disposal of this Committee to provide further information.
Another Government representative, the Minister of Manpower, indicated that as a Southern Sudanese, she continued to feel embarrassed by the reported claim of slavery in Sudan, especially in the South. She explained that the claim that there was slavery originated in an article written by a Southern Sudanese, Mr. Aldo Ajo, Deputy Speaker of the Assembly from 1993 to 1994. When the United Nations Special Rapporteur came to Sudan in 1993, he met with Mr. Aldo Ajo. However, the latter had subsequently dissociated himself from his own article in front of the Special Rapporteur. She asserted that the Minister of Manpower before her, like herself, had also insisted on finding out where exactly these practices were taking place, but in vain. She was ready to help this Committee with relevant information in order to solve the problems in Sudan which in fact arose from the civil war. She was also open to international bodies who wished to find out if the slave trade existed in the South. However, it was a slap in her face, especially as a Southern Sudanese, to listen to repeated misrepresentations and allegations that her Government was doing nothing. She, in particular, was interested in solving any potential problems.
The Workers' members insisted that Lord McNair's CV and terms of reference were not known and it was therefore not useful to refer to his report. While the Government representatives' expression of readiness to cooperate was helpful, he should ask for ILO assistance that would help to establish the facts and eradicate the existence of slavery in Sudan. The strongest possible message should be sent to the Government in respect of this case.
The Employers' members thought that the Government representative had tried to show a kind of generosity in evaluating the interventions which had been made during the discussion of this case. The Government representative had rejected all allegations with regard to the existence of slavery in the country and had said that these allegations had been an insult to the people of the country. However, the Government representative had not provided any new information on the case. Although a report of a certain Lord McNair had been presented, according to which slavery did not exist in Sudan, this report could not be evaluated by this Committee since it had only been presented orally. In conclusion, the situation in this country was very precarious. Slavery and forced labour were realities. Therefore, the Government should be urged to do its utmost to change the situation in this country.
The Committee took note of the information supplied by the Government representatives and of the discussion which ensued. The Committee stressed that this was a particularly serious case affecting human rights, as witnessed by its inclusion in a special paragraph last year and the fact that comments had been received from a world organization of workers. The Committee noted the information provided by the Government on measures being taken to track down and bring an end to practices of slavery. In particular, it welcomed the achievements of the recently established Investigating Commission. But the Committee expressed its deep concern and urged the Government to do much more. The Committee insisted that the request for assistance from the Office should address the substance of the problem, and urged the Government in this respect to ask again for assistance which would ensure that there would be a serious attempt to eliminate slavery throughout the country. The Committee expressed the firm hope that the next report to be submitted to the Committee of Experts would contain details on the concrete measures taken, cases brought to justice, number of convictions made and the penalties imposed. It also expressed the firm hope that the next report would describe the measures envisaged so that full application in law and in practice of the Convention could be noted in the very near future.
The Workers' members stated that, in view of the serious nature of the evidence and the fact that very little has been done, the case should continue to be mentioned in a special paragraph.
The Employers' members indicated their agreement.