Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Minimum Age Convention, 1973 (No. 138) - Ukraine (Ratification: 1979)

Other comments on C138

Observation

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Article 2(1) of the Convention and Part IV of the report form. 1. Scope of application and labour inspection. The Committee had previously noted the Government’s information that the provisions of section 188 of the Labour Code, regulating the minimum age for admission to employment, as well as the provisions prohibiting the employment of children in hazardous work, apply to workers of all enterprises, institutions and organizations, irrespective of the forms of ownership, type of activity and sectoral affiliation. It had observed that since 2005 the Goznadzortrud (authority within the Ministry of Social Labour and Social Policy which monitors the compliance of labour legislation) had participated in the implementation of the ILO–IPEC project “Institutional development of labour inspection for participation in the System of Child Labour Monitoring (CLMS) in two pilot regions – Donetsk and Kherson regions”. It had noted with interest the Government’s information that CLMS developed in the Donetsk and Kherson regions would be replicated at the country level under the “National Plan of Action to implement the United Nations Convention on the Rights of the Child for 2006–16”, adopted in June 2007.

The Committee had, however, noted the Government’s statement that, the supervision of the use of child labour in the informal sector of the economy remained an outstanding issue which concerned, above all, the right of access to workplaces in the informal sector. According to the Government, the lack of criteria of evaluation of the presence of employment relations when using child labour in private garden plots or in the street did not provide the inspectors with the grounds to apply administrative sanctions. The basic problem, therefore, consisted in the development of a mechanism to collect evidence testifying to the fact that a child works for an employer in the absence of any written arrangements. It had noted the Government’s information that the labour inspectors involved in the implementation of the ILO–IPEC programme in the Donetsk and Kherson regions were carrying out their activities to develop such a mechanism with the participation of the representatives of other supervisory bodies. The Committee had repeatedly expressed its hope that, in adopting the CLMS at the national level, the labour inspection component concerning children working in the informal sector would be strengthened.

The Committee notes with regret that the Government’s report does not supply any additional information on the CLMS. Moreover, it notes, that the Committee on the Rights of the Child (CRC), in its concluding observations (CRC/C/UKR/CO/3-4, paragraph 74, 21 April 2011), expressed concern at the high number of children below the age of 15 years working in the informal and illegal economy, in particular in illegal coal mines, as well as the extent of violations of labour law regarding the employment of children. It also expressed its deep concern at the challenges in identifying child labour in the informal sector, and at the lack of authority of the State Department for Supervision of the Observance of Labour Legislation to monitor the informal sector as well as child labour in the family. The Committee expresses its concern at the situation of children working in the informal and illegal economy and urges the Government to intensify its efforts to adapt and strengthen the labour inspection services in the informal economy, in order to ensure that the protection established by the Convention is ensured for children working in this sector. It once again requests the Government to indicate any measures adopted or envisaged within the CLMS at the national level on improving the capacity of labour inspectors to detect cases of child labour in the informal sector with a view to removing these children from child labour, and the results achieved.

2. Minimum age for admission to employment or work. The Committee had previously noted that under section 188(2) of the Labour Code, children of 15 years of age may exceptionally be authorized to work with the consent of their parents or parent substitutes. The Committee had observed that the above provision of the Code allows young people to carry out an economic activity at an age lower than the minimum age for admission to employment or work specified by Ukraine upon ratifying the Convention, namely 16 years. It had also noted the Government’s information that within the framework of the ILO–IPEC project “Declaration of the basic rights and freedoms at work”, a draft Labour Code of Ukraine was being prepared the provisions of which comply with international labour standards. Noting the absence of information in the Government’s report, the Committee once again requests the Government to take the necessary measures within the framework of the adoption of the new Labour Code, to ensure that no one under the age of 16 years may be admitted to employment or work in any occupation, in conformity with Article 2(1) of the Convention. It also requests the Government to provide a copy of the new Labour Code, as soon as it has been adopted.

Articles 3(3) and 6. Authorization to perform hazardous work from the age of 16 and vocational training. The Committee had previously noted that according to the provisions stipulated under Order No. 244 of the State Labour Protection Inspectorate of 15 December 2003, the admission of minors to employment in hazardous occupations is allowed only when minors reach the age of 18 years. It had also noted that by virtue of section 2(3) of the Order of the Ministry of Health of Ukraine No. 46 of March 1994, persons under the age of 18 years pursuing vocational training may perform hazardous types of work for not more than four hours a day on condition that existing sanitary and health norms on labour protection are strictly observed. However, it had noted the Government’s statement that there are no adopted norms providing a minimum age for the admission of children and young persons to training. The Committee had also observed that, children between 14 and 16 years are allowed to perform hazardous work during vocational training. It had reminded the Government that, according to Article 3(3) of the Convention, the competent authority may, after consultation with the organizations of employers and workers concerned, authorize employment or work as from the age of 16 years on the condition that the health, safety and morals of the young persons concerned are fully protected and that the young persons have received adequate specific instruction or vocational training in the relevant branch of activity. Noting the absence of information in the Government’s report on this point, the Committee once again requests the Government to take the necessary measures within the framework of the adoption of the new Labour Code, to ensure that children who follow vocational training programmes or apprenticeships are allowed to perform hazardous work only from the age of 16 years, in conformity with Article 3(3) of the Convention.

Article 7(3). Determination of light work. The Committee had previously noted that section 188(3) of the Labour Code provides that, in order to teach young people to work productively, students in general vocational and technical education or specialized secondary education having attained 14 years of age may perform light work during their leisure hours provided the consent of one of their parents or parent substitutes is obtained and on condition that it does not harm their health or interrupt their schooling. It had also noted the Government’s information that the draft Labour Code provides that the list enumerating the types of light work which may be performed by children shall be approved by a specially authorized authority dealing with labour issues. The Committee had requested the Government to provide information on any developments made in this regard. Noting the absence of information in the Government’s report, the Committee once again expresses the firm hope that provisions determining light work activities which may be performed by children from the age of 14 years will soon be adopted pursuant to the provisions of the draft Labour Code. It once again requests the Government to provide information on any developments in this regard, and to provide a copy of the provisions determining the light work activities as soon as they have been adopted.

Article 8. Artistic performances. The Committee had previously noted the Government’s indication that an attempt was being made in the draft Labour Code to regulate the labour relations of young persons admitted to employment in the cinema, theatre and concerts. In this regard, it had noted the Government’s information on the conditions and procedures to be followed for acquiring permission to employ children under 14 years for participation in artistic performances. The Committee had observed the absence of provisions limiting the hours of work and prescribing the conditions of work by children under 14 years for artistic performances. Noting the absence of information in the Government’s report, the Committee once again expresses the firm hope that in the process of adopting the draft Labour Code, the Government will take the necessary measures to limit the number of hours during which and prescribe the conditions in which children under 14 years may be granted permission to work in artistic performances as laid down under Article 8 of the Convention. It requests the Government to provide information on any developments made in this regard.

Part V of the report form. Application of the Convention in practice. The Committee notes the statistical reports of labour inspections provided by the Government with regard to the employment status of working children. According to this data, the labour inspectors inspected 441 enterprises during August–September 2010, and found 1,132 minors, including 28 children under 14 years of age, 134 children of 14 to 15 years, 144 persons of 15 to 16 years, and 826 persons of 16 to 18 years working in violation of the labour legislation. The Government’s report indicates that children under 14 years of age who were found working (28 children) worked in the agricultural sector. Regarding the types of violations detected, the Committee notes the Government’s information that 98 children were working without any labour contract, 16 children worked in heavy and harmful conditions; 74 children worked overtime; and 27 children worked without any wages. It further notes that the labour inspectors issued 274 instructions to employers to eliminate such violations, and 195 employers were brought to administrative liability. It also notes the Government’s statement that the labour inspectors, in cooperation with the services on minors’ affairs conducted 200 awareness-raising events of children and their parents. Having noted previously the Government’s information that the Centre of Social Expertise of the Institute of Sociology of the National Academy of Sciences conducted a study on the use of child labour in six sectors of the informal economy (agriculture, street trade, work in mines, services sector, commercial sexual exploitation and illegal activities, including begging), and further noting that the Government has not provided any information in this regard, the Committee once again requests the Government to provide statistical information on child labour gathered from the study. It also requests the Government to continue providing information on the number of children found working by the labour inspection services, especially in the informal sector, and on the number and nature of violations detected and penalties applied.

The Committee notes that the draft Labour Code which has been under preparation since 2007 has not yet been adopted. The Committee expresses the firm hope that the Government will take all the necessary measures to bring the draft Labour Code into force, taking into consideration the above comments made by the Committee. In this regard the Committee invites the Government to consider seeking technical assistance from the ILO.