Observación (CEACR) - Adopción: 2022, Publicación: 111ª reunión CIT (2023)

Convenio sobre la edad mínima, 1973 (núm. 138) - Canadá (Ratificación : 2016)

Otros comentarios sobre C138

Observación

2022

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Article 2(1) of the Convention. Scope of application. The Committee notes the information provided by the Government in its report regarding the manner in which the protection provided by the Convention is guaranteed to children and young persons working in family-owned businesses in Nova Scotia, Prince Edward Island and Saskatchewan.

Adding to the fact that the legislation of these three provinces provides that children must be enrolled in and attend school until the age of 16, the Committee notes the following:

–Nova Scotia: Family-owned businesses are subject to the Occupational Health and Safety Act, in accordance with which employers must take every reasonable precaution to ensure the health and safety of persons at work, provide information, instruction and training, and generally ensure the workers’ health and safety (section 13(1)).
–Prince Edward Island: The Government intends to begin a review of the Employment Standards Act, which is expected to take into consideration compliance with ratified ILO Conventions. In the meantime, young persons working in family-owned businesses are protected through education and enforcement. The Occupational Health and Safety (OHS) Division has a dedicated Farm Safety Specialist that routinely visits farm employers to discuss workplace safety specific to farms. In the spring, an OHS Officer dedicates time to visiting fisher employers to discuss safety requirements. In addition, the Workers Compensation Board (WBC) employs a full-time Youth Education consultant, who is responsible for developing educational information targeted at young worker safety.
–Saskatchewan: A review of the employment standards provisions of the Saskatchewan Employment Act is expected to take place in 2022-23, which will provide an opportunity for consultation on this matter. In the meantime, Saskatchewan employment standards officers investigate all complaints received – even those in situations that are not covered by the Act – and an interactive programme for young workers to be aware of their rights and responsibilities in the workplace introduced in 2010–11 contributes to the compliance of employers.

The Committee requests the Government to provide information on the progress made by Prince Edward Island and Saskatchewan in reviewing their employment standards legislation, and whether these reviews will address the issue of including family-owned businesses and enterprises in the scope of application of those standards. The Committee further requests the Government to provide information on the number of children employed in such family-owned businesses and enterprises in Nova Scotia, Prince Edward Island and Saskatchewan who are effectively protected, in particular through the application of occupational health and safety legislation and inspections, and through the inspections conducted by Saskatchewan’s employment standards officers.

Article 7(1) and (3). Age for admission to light work and determination of light work. 1. British Columbia. The Committee previously took note of British Columbia’s Employment Standards Act and requested the Government to indicate the measures taken or envisaged to regulate the employment of children in light work from the age of 13 years, as required by Article 7(1) of the Convention.

The Committee notes with interestthat the recently enacted Employment Standards Amendment Act, 2019, of British Columbia raises the general working age to 16, and allows youth aged 14 and 15 to perform appropriate jobs defined as “light work” (new section 9(1) of the Amendment Act). Examples of light work considered appropriate for 14–15 year-olds which are unlikely to be harmful to the child’s health or development include: (i) recreation and sports club work; (ii) light farm and yard work, such as gardening, clearing leaves and snow; (iii) administrative and secretarial work; (iv) retail work; (v) food service work; and (vi) skilled and technical work. Restrictions on when youth may engage in these activities (i.e. not during school hours) continue to apply so it will not prejudice their attendance at school.

2. Manitoba and Saskatchewan. The Committee notes the Government’s information that, in order to determine the types of light work activities that youth aged 13 years are permitted to participate in, Manitoba undertook a jurisdictional scan and engaged in stakeholder consultations with the Labour Management Review Committee (LMRC), which is made up of stakeholders representing the views of both employers and employees. Recent consultations with the LMRC resulted in the addition of a prohibition on employment of workers under age 14 in food preparation work if the work involves the use of dangerous tools or machinery.

In the case of Saskatchewan, the Government indicates that while section 3-3 of the Occupational Health and Safety Regulations, 2020, currently provides a detailed list of prohibited work for anyone under the age of 16, there is no current definition of “light work” in the Employment Act or associated regulations. A review of the employment standards provisions of the Act is expected to commence in 2022–23, with a regulatory review to follow. The Government indicates that the concept of light work should be considered as a part of these consultations. The Committee requests the Government of Manitoba to provide information on the progress made in the process of determining light work activities that may be permitted to children from the age of 13 years, in consultation with the LMRC. It also requests the Government of Saskatchewan to provide information on the progress made in its review of the Employment Act and regulations, and requests it to take measures to ensure that this review include a determination of types of light work activities that may be permitted to children from the age of 14 years.

3. New Brunswick, Nova Scotia and Prince Edward Island. The Committee notes the Government’s information that the Employment Standard Branch in New Brunswick processes youth work permit applications and indicated that the majority of applications deal with children 15 years or older. The Employment Branch also consults with WorkSafeNB on the work conditions of the workplace and imposes special conditions of work including supervision, limited hours of works, and tasks, in certain instances.

The Government further indicates that in the case of Prince Edward Island, the Government intends to begin a review of the Employment Standards Act and of the Youth Employment Act, which is expected to be extensive and take into consideration compliance with the ILO Conventions ratified by Canada, including Convention No. 138. This work is expected to take a few years to complete. The Committee notes that the Government provides no information with regard to Nova Scotia.The Committee requests the Government of Prince Edward Island to provide information on the progress made in its review of the Employment Standards Act and the Youth Employment Act, and to take measures to ensure that this review include the establishment of a minimum age of 13 years for employment in light work, as required by Article 7(1) of the Convention. It once again requests the Government of Nova Scotia to indicate the measures taken or envisaged to establish a minimum age of 13 years for employment in light work.

4. Northwest Territories, Nunavut and Yukon. The Committee notes that the Government of the Northwest Territories is of the view that the Employment Standards Act (sections 46-47) and the Safety Act (section 4), combined with the requirement under the Education Act – that children under the age of 16 attend school – are sufficient to ensure that children are not employed in work that would be harmful to their health or development and that their attendance at school is not prejudiced. However, the Governments of Nunavut and Yukon provide no further information at this time. The Committee once again requests the Governments of Nunavut and Yukon to take the necessary measures to ensure that the minimum age for admission to light work is set at 13 years, and to determine the types of light work activities that may be permitted for persons of 13 years and above as well as the number of hours during which, and the conditions in which, such employment may be undertaken, as required under Article 7 of the Convention.

5. Ontario. The Committee takes due note of the Government’s information that the minimum age for working in Ontario is 14 years for most types of work, with certain types of work requiring a higher minimum age, in accordance with the Occupational Health and Safety Act (OHSA). The Government indicates that health and safety protections set for different types of workplaces and different kinds of workplace hazards, as required under the OHSA and its regulations, would apply to all workers, regardless of age. In addition, higher minimum ages are prescribed by the OHSA for certain types of work that may be more hazardous.

6. Quebec. The Committee previously noted that pursuant to section 84.3 of the Act respecting Labour Standards, a child under 14 years of age may be employed with a written consent of the child’s parent or tutor. It noted that sections 84.4 to 84.7 provide conditions in terms of schooling and working hours that are imposed on the employment of children. The Government indicated that that the term child under sections 84.4 to 84.7 refers to persons under 17 years.

The Committee notes that the Government does not provide new information on this subject in its report. The Committee once again requests the Government of Quebec to take the necessary measures to ensure that no child under the age of 13 years is permitted to be employed in light work. It also once again requests the Government to take the necessary measures to determine the types of light work activities that may be permitted for persons of 13 years and above.

Article 9(1). Penalties and labour inspection. Following its previous comments, the Committee notes the detailed information provided by the Government on the federal, provincial and territorial labour inspectorates and their functioning, as well as on violations detected and penalties applied. For example, it notes the Government’s indication that, at the federal level, there was only one complaint concerning underage employment between 1 January 2010 and 8 August 2021, which was determined to be unfounded upon inspection. In British Columbia, the Employment Standards Branch of the Ministry of Labour has issued two penalties in the past five years for violations of section 9 of the Employment Standards Act (hiring of a child without a permit). In Manitoba, 22 youth-related Director’s Own Accord (DOA) investigations were carried out between 2017 and 2021, during which 13 violations were detected. In the Northwest Territories, 92 payroll inspections were completed by the Employment Standards Inspectors, but none of these inspections identified violations with regard to the employment of youth.

However, the Committee observes from the Government’s report that, in many cases, inspections do not collect information specific to the age of the employee in question. In British Columbia, both the Employment Standards Branch and WorkSafeBC (who undertakes workplace inspections and issues orders for non-compliance under the Occupational Health and Safety Regulations) do not collect information specific to the age of the employees. In New Brunswick, where the system under the Employment Standards Branch is largely complaint-driven, inspections involving young employees are not specifically tracked. In addition, workSafeNB inspects workplaces for adherence to OHSA, but focused inspections at workplaces employing children and youth are not conducted. In Newfoundland and Labrador, there have been 22,113 inspections over the past five years, but the OHS division does not track the age of people involved in complaints. In Prince Edward Island, there have been no complaints/investigations/violations/penalties issued in relation to the employment of children under the Employment Standards Act or Youth Employment Act. Moreover, the Committee notes that certain provinces, including Newfoundland andLabrador, report that they do not even collect data relating cases of violations of legislation relating to the employment of children or to their occupational health and safety.

The Committee further observes, from the Government’s report, that violations of minimum age provisions across Canada do not appear to be penalized. For example, in New Brunswick, notices of non-compliance are generally issued to employers without the need for further sanctions. In Manitoba, in all the cases of violations detected by the DOA through its youth-related investigations between 2017 and 2021, no administrative sanctions were issued. In Nova Scotia, employment of children concerns are typically resolved by educating employers about the provisions of the Code, rather than through prosecutions, as authorized by the Labour Standards Code.

The Committee recalls that Article 9(1) of the Convention requires that all necessary measures, including the provision of appropriate penalties, be taken by the competent authority to ensure the effective enforcement of the provisions of the Convention. While the adoption of national legislation is essential as it establishes a framework within which society determines its responsibilities with regard to young persons, even the best legislation only takes value when it is applied effectively (2012 General Survey on the fundamental Conventions, paragraph 410). Moreover, the Committee emphasizes the importance of ensuring that the labour inspection system effectively monitors working children in all areas and sectors (2012 General Survey on the fundamental Conventions, paragraph 408). The Committee therefore requests the Government to take the necessary measures to adapt and strengthen the labour inspection services in order to enable them to effectively monitor children working across all sectors. It also requests the Government to take the necessary measures to ensure that the regulations providing for penalties – administrative or otherwise – in the case of a violation of the provisions on the employment of children and young persons are effectively implemented by the labour inspectorate or other competent authorities. In this regard, it requests the Government to provide information on the number and nature of violations detected and penalties imposed relating to the employment of children across Canada.

The Committee is raising other points in a request addressed directly to the Government.