Observation (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

Convention (n° 138) sur l'âge minimum, 1973 - Eswatini (Ratification: 2002)

Autre commentaire sur C138

Observation

2022
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Article 1 of the Convention. National policy. The Committee previously noted the allegations made by the Swaziland Federation of Trade Unions (SFTU) that there was no national policy or action programme for the elimination of the worst forms of child labour, and that there was no political will on the part of the Government to address the legislative and policy issues concerning child labour. The Committee noted the Government’s indication that the redrafting of the proposed Employment Bill and of the National Action Programme on the Elimination of the Worst Forms of Child Labour (NAP-WFCL) had been finalized by the Labour Advisory Board (LAB) and that both would soon be submitted to Cabinet for adoption and publication.

The Committee notes the Government’s indication in its report that the adoption of the NAP-WFCL and of the Employment Bill was delayed from 2013 to 2015 due to the fact that the tripartite structures of the country, including the LAB, were not functioning. In 2015, the tripartite structures were once again established, leading to the adoption of the NAP-WFCL by the LAB. As for the Employment Bill, the Government requested technical assistance from the ILO on the drafting of the Bill before being further processed through the legislative channels. However, the revision of the Employment Act was shelved by the Government due to the fact that other laws needed to be amended as a matter of priority, such as the Public Service Act, Terrorism Act, and Law and Order Act. The Government indicates that once the final review by the consultant is finished, the Employment Bill will be referred to the Attorney General for further and appropriate processing. Noting that the Government has been referring to the Employment Bill for several years, the Committee urges the Government to take the necessary steps to ensure that it is adopted without delay, taking into consideration the comments made by the Committee, and requests that the Government provide a copy of the enacted Employment Act. The Committee also requests that the Government provide a copy of the NAP-WFCL, as well as information on its impact on the elimination of child labour.

Article 2(1). Scope of application. Informal economy, including family undertakings. The Committee previously observed that, in practice, children appeared to be engaged in child labour in a wide range of activities in the informal economy. Yet, the Committee noted that, pursuant to section 2 of the Employment Act, domestic employment, agricultural undertakings and family undertakings were not included in the definition of “undertaking” and therefore not covered by the minimum age provisions of section 97. While the Committee observed that the draft Employment Bill also exempted family undertakings from the minimum age provisions, it noted the Government’s indication that the Employment Bill, once adopted and promulgated, would include all workers, even those working in the informal economy, so as to be in line with the Convention. Moreover, the Committee noted the Government’s information that, with technical assistance from the ILO, the Ministry of Labour and Social Security had been training labour inspectors on child labour issues and on how to identify child labour in all sectors of the economy.

The Committee notes the Government’s indication that it will continue to adapt and strengthen the labour inspectorate in order to improve its capacity to identify cases of child labour in the informal economy and to ensure the effective application of the Convention. Moreover, the Government indicates that cases of child labour were reported, handled and resolved by the Ministry of Labour and Social Security. The Committee also notes the Government’s information that the ILO provided technical assistance to increase the capacity of labour inspectors on matters relating to child labour through trainings which covered approximately 50 per cent of the labour inspectors.

However, the Government indicates that new inspectors have since been employed who also require such training. In addition, the Committee notes the Government’s information that due to the low number of labour inspectors, the Labour Inspectorate has not been able to conduct inspections in the informal sector of the economy, where child labour is the most prevalent. The Committee notes that, in its report submitted under the Labour Inspection Convention, 1947 (No. 81), the Government shares statistics on the number of inspections conducted, violations detected and penalties applied in 2016. While the Government does not provide information related to child labour violations, the Committee observes that 2,596 inspections were conducted during which 76 violations were detected, but no penalties were imposed, which means that no penalties were imposed for any violations of the labour law provisions prohibiting child labour.

While taking note of the measures taken by the Government, the Committee must emphasize the importance of ensuring that the labour inspection system effectively monitors working children in all areas and sectors (see General Survey on the fundamental Conventions, 2012, paragraph 407). The Committee therefore urges the Government to take the necessary steps to adapt and strengthen the labour inspectorate in order to improve the capacity of labour inspectors and allow them to identify cases of child labour in the informal economy, so as to ensure that the protection afforded by the Convention is effectively applied to all child workers. It requests that the Government provide information on the progress made in this regard.

Article 2(3). Age of completion of compulsory education. The Committee previously noted the Government’s indication that it enacted the Free Primary Education Act of 2010, which contains provisions requiring parents to send their children to school until the completion of primary schooling. However, the Committee noted with concern that primary schooling finishes at the age of 12 years, while the minimum age for admission to employment is 15 years in Swaziland.

The Committee notes the Government’s indication that it took due note of the Committee’s request for extending compulsory education up to the age of 15 years, and that it has made education free for all primary grades. However, the Committee underlines that Article 2(3) of the Convention requires that the specified minimum age for admission to employment or work, which is 15 in Swaziland, not be less than the age of compulsory schooling. Referring to its 2012 General Survey on the fundamental Conventions (paragraph 369), the Committee recalls that compulsory education is one of the most effective means of combating child labour. It thus stresses the importance of adopting legislation providing for compulsory education up to the minimum age for admission to employment or work, because where there are no legal requirements establishing compulsory schooling, there is a greater likelihood that children under the minimum age will be engaged in child labour. Considering that compulsory education is one of the most effective means of combating child labour, the Committee once again urges the Government to take the necessary steps to make education compulsory (and not only free) for students at the primary and lower secondary levels, up until the minimum age for admission to employment, which is 15 years in Swaziland.

Article 3(2). Determination of hazardous work. The Committee noted the Government’s statement that upon the adoption of the Employment Bill, measures would be taken in consultation with the social partners to develop a list of types of hazardous work prohibited to children and young persons, as envisaged by section 10(2) of the Employment Bill. The Committee reminded the Government that, under the terms of Article 3(2) of the Convention, the types of hazardous work prohibited to children under 18 years of age shall be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned. The Committee noted the Government’s indication that the multi-stakeholder Child Labour Committee initiated talks to determine the list of hazardous work and that this list would be sent to the LAB for consideration before being transmitted to the Minister of Labour and Social Security.

The Committee notes the Government’s indication that the adoption of the list of hazardous work now hinges on the process of enacting the Employment Bill, and that it will keep the Committee informed of the developments in this regard. The Committee therefore once again requests that the Government take the necessary measures to ensure that the types of hazardous work prohibited to children under 18 years of age are determined and that the list is adopted in very near future. It requests that the Government provide information on the progress made in this regard.

Article 7. Light work. The Committee previously noted that 9.3 per cent of children between the ages of 5 and 14 years were engaged in child labour in Swaziland. The Committee noted that the Employment Bill did not appear to set a minimum age for light work, including work in family undertakings. Noting that national legislation did not regulate light work and that a significant number of children under the minimum age were engaged in child labour, the Committee requested the Government to envisage the possibility of adopting provisions to regulate and determine the light work activities performed by children between 13 and 15 years of age, in accordance with Article 7 of the Convention.

The Committee notes the Government’s information that a provision on light work has been included in the Employment Bill in the part dealing with the prohibition of child labour and employment of young persons. The Committee requests that the Government provide information on the progress made in adopting the Employment Bill, including the provisions regulating light work in accordance with Article 7 of the Convention.

Application of the Convention in practice. The Committee previously noted the Government’s information that, due to a lack of resources, the labour inspection management system was not operational, and that data was still being compiled manually. However, it noted the Government’s indication that the Labour Force Survey was being conducted and that this survey included questions on the employment of children. In addition, the Government indicated that the Central Statistical Office was being assisted by the ILO in order to conduct a fully-fledged survey on child labour.

The Committee notes with concern the Government’s information that statistics on child labour are not available due to the fact that the 2013–14 Integrated Labour Force Survey did not cover issues related to child employment. It notes the Government’s indication that child employment statistics will be included in future surveys. The Committee requests that the Government take measures to ensure sufficient updated statistical information on the situation of working children in Swaziland is made available, including for example data on the number of children and young persons below the minimum age who are engaged in economic activities, and statistics relating to the nature, scope and trends of their work.