Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Article 2, paragraph 1, of the Convention. Scope of application. 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”. Under this project, workplaces in both the formal and informal economy have been monitored. Moreover, in 2006, six districts were identified in the Donetsk and Kherson regions where the identification of working children is under way, both in the formal and informal sectors.

The Committee had noted with interest the Government’s information that the CLMS developed in the Donetsk and Kherson regions will 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 introduction of the system of permanent monitoring of child labour will make it possible to detect cases of the illegal use of child labour as well as to remove children from the worst forms of child labour. The Committee, 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. This concerns, above all, the right of access to workplaces in the informal sector. The lack of criteria of evaluation of the presence of employment relations when using child labour in private garden plots or in the street does not provide the inspectors with the grounds to apply administrative sanctions. The basic problem, therefore, consists 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. 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. Noting the absence of information in the Government’s report, the Committee once again expresses its hope that, in adopting the CLMS at the national level, the labour inspection component concerning children working in the informal sector will be strengthened. It requests the Government to redouble its efforts to adapt and strengthen the labour inspection services in the informal sector, in order to ensure that the protection established by the Convention is ensured for children working in this sector. It also requests the Government to provide information on any impact of the recent adoption of 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 its worst forms.

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 requested the Government to take the necessary steps to ensure that no one under the age of 16 may be admitted to employment or work in any occupation. The Committee notes the Government’s information that, since the time of the submission of the previous report, no changes were introduced into the legislation relating to the increase of the minimum age for employment of minors. It notes that, according to the Government, in 2005, the State Employment Service assisted in employing 79 children who had reached the age of 15 years, and in 2006, it assisted 61 children who had reached the age of 15 years. Moreover, between August and December 2005, the labour inspectorate identified 459 children from 15 to 16 years of age who were working. The Committee notes 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 prepared the provisions of which comply with international labour standards. In the framework of the adoption of the new Labour Code, the Committee requests the Government to take the necessary measures 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.

Article 3, paragraph 3, and Article 6. Authorization to perform hazardous work from the age of 16 and vocational training. The Committee had previously noted the Government’s information that section 3 of Order No. 283/P-9 of 10 September 1980 allows work that includes harmful tasks to be carried out for training purposes by persons over the age of 15 years. Moreover, according to same section 3 of this Order, persons under the age of 18 for the purposes of vocational training may perform hazardous types of work for not more than four hours a day on condition that existing sanitary regulations are strictly observed. The Committee requests the Government to take the necessary legislative measures to ensure that the performance of such work is only authorized for persons between 16 and 18 years of age in conformity with the conditions of Article 3(3) of the Convention.

The Committee notes the Government’s information that Order No. 283/P-9 of 10 September 1980 is not applicable in the territory of Ukraine, including its section 3. Instead, section 2(3) of the Order of the Ministry of Health of Ukraine No. 46 of March 1994 is applicable. Section 2(3) of this Order states that persons under 18 years enrolled in vocational technical institutions are allowed to participate in the production process, occupations and works included in the list of hazardous work contained in Order No. 46 of 1994. They cannot work more than four hours a day under the condition of the strict observance of the existing sanitary and health norms on labour protection. The Committee further notes the Government’s information that vocational training of children in the professions connected with types of hazardous work, is contained in the “Provisions concerning labour and vocational training of minors in the professions connected with hard or dangerous working conditions as well as types of work requiring higher security”, approved by Order No. 244 of the State Labour Protection Inspectorate of 15 December 2003. According to these provisions, the admission of minors to employment in hazardous occupations is allowed only when minors reach the age of 18 years when they finished training in those occupations. The Committee observes the Government’s information on the provisions regulating the instruction and monitoring of minor trainees before and during training. However, it notes the Government’s information that there are no adopted norms stipulating minimum age for the admission of children and young persons to training. The Committee observes that, in connection with national legal provisions on light work dealt with under Article 7 of the Convention, it seems that children between 14 and 16 years are allowed to perform hazardous work during vocational training. It reminds 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 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. In the framework of the adoption of the new Labour Code, the Committee requests the Government to take the necessary measures 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, paragraph 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. The Committee had requested the Government to provide information on the measures taken to determine light work activities, pursuant to Article 7(3) of the Convention. The Committee notes the Government’s information that, according to section 51 of the Labour Code, the length of the working time of pupils who work during the academic year when they have no classes may not exceed 12 hours per week. The Committee further notes 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 hopes 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 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. Following its previous comments, the Committee notes the Government’s information that an attempt is made in the draft Labour Code to regulate the labour relations of young persons admitted to employment in the cinema, theatre and concerts. Upon agreement of one of the parents or guardians, it will be permitted to employ children under 14 years for participation in artistic performances if this is not harmful to their health, morals and development. In such cases, the child will be admitted to work after receiving the permission of the services of juvenile affairs. A written labour contract will be concluded with the minor and signed by him/her and his/her parents or guardians. The Committee recalls that, under Article 8(2) of the Convention, permission granted in individual cases to children under 14 years for their participation in artistic performances must limit the number of hours during which, and prescribe the conditions in which, such employment or work is allowed. In the framework of the adoption of the new Labour Code, the Committee hopes that the Government will take account of the above comments.

Part V of the report form. Practical application of the Convention. The Committee had previously expressed its concern at the large number of children under the age of 16 who increasingly worked in practice, especially in the informal sector. It had also noted the Government’s statement that identifying children working in the illegal mines were difficult due to the lack of information about the location of such mines. However, within the framework of the ILO–IPEC programme, since 2006, a set of measures had been envisaged aimed at identifying children working in the illegal mines and engaged in the grading and loading of coal on the open surfaces. It was envisaged to identify such children with the participation of the members of the Trade Union of Free Miners of Ukraine. Moreover, the Committee had also noted the Government’s information that, in the framework of the ILO–IPEC programme, the Centre of Social Expertise of the Institute of Sociology of the National Academy of Sciences had 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) in Ukraine, following the example of the Donetsk and Kherson regions. This study served as a basis for developing vocational training programmes for children at risk of being involved in child labour and its worst forms. However, the lack of updated statistical data at the national level on the use of child labour in the informal sector constituted a problem.

The Committee notes the Government’s information that, as a result of the inspections carried out in August 2008 in 660 enterprises, including 160 agricultural undertakings, violations of child labour legislation were identified with respect to 2,237 minors. Out of this, 66 working children were under the age of 14 years, out of which 64 were engaged in agricultural undertakings. Other violations were with regard to the keeping of records of the young persons by the employer, children working under heavy and harmful working conditions, and long working hours. The Committee also notes the Government’s information that 453 orders and directives were issued by the labour inspectors against the employers for the violations of the provisions of child labour, and 351 notices were issued to the court to bring the employers to administrative responsibility. The Committee once again requests the Government to provide a copy of the study conducted by the Centre of Social Expertise of the Institute of Sociology of the National Academy of Sciences. It also requests the Government to indicate the outcome of the measures taken within the framework of the ILO–IPEC project to identify children working in the illegal mines and engaged in the grading and loading of coal on the open surfaces. It finally requests the Government to continue to provide extracts from the inspection services, especially regarding children working in the informal sector, as well as information on the number and nature of the contraventions reported and penalties applied.