CMNT_TITLE

Minimum Age Convention, 1973 (No. 138) - Samoa (RATIFICATION: 2008)

Other comments on C138

Observation

Direct Request

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The Committee notes the Government’s first report.

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour. The Committee notes the information in the Government’s report that a National Policy for Children of Samoa (2010–15) has been adopted. This National Policy aims to alleviate poverty and provide protection to children through programmes and services to address the needs of children in difficult circumstances. The Committee requests the Government to provide information on any measures taken or envisaged, within the framework of the National Policy for Children of Samoa, to ensure the effective abolition of child labour.

Article 2(1). Minimum age for admission to employment or work. The Committee notes that, at the time of ratification, the Government specified 15 years as the minimum age for admission to employment or work. In this regard, the Committee notes that section 32(1) of the Labour and Employment Act 1972 prohibits employing any child under the age of 15 years of age in any place of employment except in safe and light work suited to his or her capacity.

Article 2(3). Age of completion of compulsory education. The Committee notes that section 20 of the Education Act 2009 prohibits arranging for a compulsory school-aged child to engage in street trading or to carry out other work of any kind during school hours. However, the Committee notes that pursuant to section 2 of the Education Act 2009, a compulsory school-aged child is defined as a person between 5 years and 14 years of age, who has not completed the work of Year 8 of school.

The Committee considers that the requirement set out in Article 2(3) of the Convention is fulfilled, since the minimum age for employment (15 years) is not less than the age of completion of compulsory schooling (14 years). However, the Committee must emphasize the desirability of linking the age of completion of compulsory schooling with the minimum age for admission to work, as provided under Paragraph 4 of the Minimum Age Recommendation, 1973 (No. 146). If compulsory schooling comes to an end before young persons are legally entitled to work, there may arise a vacuum which opens the door to the economic exploitation of children (see General Survey of 2012 on the fundamental Conventions, paragraph 371). Considering that compulsory education is one of the most effective means of combating child labour, the Committee encourages the Government to consider raising the age of completion of compulsory schooling to 15 years of age, in line with the minimum age for admission to work. It requests the Government to provide information on any measures taken or envisaged in this regard.

Article 3(1). Minimum age for admission to hazardous work. The Committee notes that the Labour and Employment Act 1972 appears to only prohibit the employment on dangerous machinery or in any injurious occupation from the age of 15 years of age (pursuant to section 32(2)). However, the Committee notes the information in the Government’s report that a new Labour and Employment Relations Bill is under development. The Government indicates that section 50(2) of this Bill will prohibit children under 18 years from being employed on dangerous machinery or in any occupation or in any place under working conditions injurious or likely to be injurious to the physical or moral health of the child. The Committee therefore requests the Government to take the necessary measures to ensure the adoption of the Labour and Employment Relations Bill to prohibit hazardous work from the age of 18 years of age, in conformity with Article 3(1) of the Convention.

Article 3(2). Determination of types of hazardous work. The Committee notes an absence of information in the Government’s report concerning the development of a list of types of hazardous work prohibited to persons under 18 years of age. However, the Committee observes that section 55(2)(b) of the Labour and Employment Relations Bill provides that regulations may be made to prescribe what is unhealthy, dangerous or onerous work, and minimum ages of entry into employment in such work. Recalling that, pursuant to Article 3(2) of the Convention, the types of hazardous employment or work 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 requests the Government to take measures to adopt regulations (pursuant to section 55(2)(b) of the Labour and Employment Relations Bill, once adopted) determining the types of hazardous work which are prohibited for persons under 18 years.

Article 6. Apprenticeship. The Committee notes that pursuant to section 12 of the Apprenticeship Act 1972, the minimum age for entry to apprenticeships is 17 years of age. The Committee also notes that, pursuant to the Apprenticeship Act, entrance into apprenticeships is regulated by the Apprenticeship Council and that all contracts of apprenticeship shall be registered with this Council.

Article 7(1). Minimum age for admission to light work. The Committee notes that section 32(1) of the Labour and Employment Act 1972 permits children under the age of 15 to engage in safe and light work suited to his or her capacity. The Committee also notes that the Education Act 2009 appears to allow children of compulsory school age to be engaged in some types of work which do not occur during school hours and which do not prevent or interfere with the child’s attendance at school, active participation in school activities or the child’s educational development. However, the Committee notes that there appears to be no lower minimum age for engagement in such light work activities. In this regard, the Committee recalls that Article 7(1) of the Convention provides that national laws or regulations may permit children from the age of 13 to engage in light work. The Committee therefore requests the Government to take the necessary measures to bring the national laws and regulations into line with the Convention by permitting employment in light work only by young people who have reached the age of 13 years. In this regard, the Committee encourages the Government to consider, within the review of the Labour and Employment Relations Bill, a provision providing for a minimum age of 13 for admission to light work activities.

Article 7(3). Determination of types of light work activities. The Committee notes an absence of information on any measures taken to determine the types of light work activities permitted to children between the ages of 13 and 15. Recalling that, under Article 7(3) of the Convention, the competent authority shall determine the activities in which light work may be permitted and shall prescribe the number of hours during which and the conditions in which such employment or work may be undertaken, the Committee requests the Government to take measures to determine the types of light work which are permitted.

Article 8. Artistic performances. The Committee notes the Government’s statement that no use is made of the exceptions permitted in Article 8 of the Convention.

Article 9(1). Penalties. The Committee notes that, pursuant to section 41(1) of the Labour and Employment Act 1972, an employer who enters into a contract contrary to any of the provisions of the Act, shall be liable for a fine not exceeding ten penalty units. The Committee also notes that this fine will be increased with the adoption of the Labour and Employment Relations Bill, as section 51 of this Bill states that an employer who enters into a contract contrary to any of the provisions of the Bill shall be liable for a fine not exceeding 50 penalty units. The Committee further notes that, pursuant to section 20 of the Education Act 2009, any person who engages a child of compulsory school age in work during school hours (or in work which could interfere with school activities) is liable to a fine not exceeding 100 penalty units in the case of a natural person, and in the case of a company or other entities, a fine not exceeding 500 penalty units. Section 21 of the Education Act 2009 stipulates that any carer of a compulsory school-aged child who permits the child to engage in such work is liable to a fine not exceeding 50 penalty units. Finally, the Committee notes that one penalty unit is equal to 100 Samoan tala (WST) (approximately US$43), pursuant to section 4 of the Fines (Review and Amendment) Act of 1998. The Committee requests the Government to provide information on the application of these penalties in cases of violations relating to the employment of children and young persons, including the number and nature of penalties imposed.

Article 9(3). Keeping of registers. The Committee notes the statement in the Government’s report that there is currently no registration regarding the employment of children kept by the Ministry of Commerce, Industry and Labour. However, the Committee also notes that section 42(2)(a) of the Labour and Employment Act 1972 (and section 55(2)(a) of the Labour and Employment Relations Bill) provide that regulations may be made prescribing the keeping by employers of records concerning persons employed in their undertakings, and the form and contents of such records. Moreover, the Committee notes that section 13 of the Labour and Employment Relations Bill states that labour inspectors shall have the power to require the production of books, registers or other documents which are required to be kept pursuant to the Bill and its regulations.

In this regard, the Committee reminds the Government that, in accordance with Article 9(3) of the Convention, national laws or regulations of the competent authority shall prescribe the registers or other documents which shall be kept and made available by the employer of persons whom he/she employs and who are less than 18 years of age. The Committee therefore requests the Government to take the necessary measures, pursuant to section 42(2)(a) of the Labour and Employment Act 1972 (or section 55(2)(a) of the Labour and Employment Relations Bill, once adopted), to adopt regulations requiring employers to keep registers of all persons employed under the age of 18, in conformity with Article 9(3) of the Convention.

Part V of the report form. Application of the Convention in practice. The Committee notes the Government’s statement that there is no statistical data available at the Ministry of Commerce, Industry and Labour regarding the employment of children and young persons. However, the Committee also notes the Government’s statement that information regarding the employment of children is captured annually in the Labour and Employment Return collected by the Labour Market Division of this Ministry. The Committee further notes the information, in a compilation of information from United Nations bodies prepared by the Office of the High Commissioner for Human Rights for the Human Rights Council’s Universal Periodic Review of 11 February 2011, that the United Nations Development Programme indicates that the due to recent job losses and economic difficulties, there has been an increase in the number of children selling various goods on the street (A/HRC/WG.6/11/WSM/2, paragraph 50). Moreover, the Committee notes that the Committee on the Rights of the Child, in its most recent examination of Samoa, expressed that it shared the Government’s concern regarding the growing number of working children, including children involved in domestic work and child street vendors, and the need to undertake targeted activities to address this issue (16 October 2006 CRC/C/WSM/CO/1, paragraph 54). The Committee therefore requests the Government to take the necessary measures to ensure that sufficient data on the situation of working children in Samoa is available, including information on the number of children below the minimum age engaged in economic activity, and the nature, scope and trends of their work. It also requests the Government to provide this information, when it becomes available. To the extent possible, all information provided should be disaggregated by sex and by age.