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Minimum Age Convention, 1973 (No. 138) - Myanmar (RATIFICATION: 2020)

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The Committee takes note Myanmar’s first report.

Article 1 of the Convention. National policy. The Committee notes that, according to the 2015 Myanmar Labour Force Survey, 1.13 million children aged 5 to 17 (9.3 per cent of the child population) were in child labour. More than half of the child labourers – 616 815 (5.1 per cent of the child population) – were trapped in hazardous work likely to harm their physical, mental or moral development. Key sectors in which child labour occurred were: agriculture (60.5 per cent); manufacturing (12 per cent); and wholesale and retail trade, repair of motor vehicles, etc. (11 per cent).

In this regard, the Committee notes that Myanmar has been implementing the Myanmar Programme of Action on the Elimination of Child Labour (My-Pec) 2013-2023 and that, in the framework of the My-Pec and among other measures, the Myanmar National Action Plan on the Elimination of Child Labour (NAP-ECL) has been adopted for the long term and covers 15 years from 2019 to 2033, through three five-year plans that will cover 2019–23, 2023–28 and 2029–33. The objective of the NAP-ECL in the long-term is to eliminate child labour in Myanmar through the dissemination of basic knowledge about child labour to be achieved by promoting awareness and knowledge, reviewing and revising laws in line with international standards, developing the capacity of national, regional and state government organizations, setting duties and responsibilities by identifying the implementation mechanism of the action plan, and evaluating progress. According to the document of the first five-year NAP-ECL (2019-2023), its objectives will cover two priority sectors – the industry and manufacturing sector and the commerce and trade sector. Moreover, the National Committee on the Elimination of Child Labour (NCECL) has been established with the objective to fast track the implementation of the NAP-ECL, supported by eight core working committees.

The Committee notes, however, that, according to a Conference room paper of the Special Rapporteur on the situation of human rights in Myanmar, 14 June 2022 (A/HRC/50/CRP.1, paragraphs 112–117), since the 2021 military takeover, adolescents and children are being sorely impacted by Myanmar’s economic collapse, and families have adopted a wide range of coping strategies to address economic hardships that have a detrimental impact on children. The Committee requests the military authorities to provide information on the implementation of the NAP-ECL and its impact on the progressive elimination of child labour in the country, including on the issues that have been identified as the main drivers of child labour, mainly: the conflict situation and its impact on the economy and education. It also requests the military authorities to take measures to ensure that the NAP-ECL addresses child labour in other sectors than industry and manufacturing and commerce and trade, in particular in agriculture, where the great majority of child labourers are found. Finally, the Committee requests the military authorities to provide information on the activities of the NCECL and the eight working sub-committees with regard to the elimination of child labour, and on the results achieved.

Article 2(1) and (3).Minimum age for admission to employment or work and compulsory education. The Committee notes that Myanmar has specified 14 years as the minimum age for admission to employment or work and that three laws regulate the minimum age domestically: under the Factories Act, 1951 (sections 2(a), 75 and 76), the Shops and Establishments Law, 2016 (section 13(a)), and the Child Rights Law, 2019 (section 48(b)), no child under the age of 14 years may be considered employable.

The Committee notes, however, that the age of completion of compulsory schooling in Myanmar appears to be 11 years. Sections 16 and 18 of the National Education Law (NEL), 2014, provide that basic education consists of primary, middle school and high school education. Section 17 of the NEL provides that after free and compulsory education has been successfully implemented at the primary level, it shall be extended, step-by-step, to higher grades. In this regard, the 2015 NEL Amendment has recognized the right of all citizens to free, compulsory education at the primary level. Currently, only primary school is compulsory in Myanmar: it lasts five years, from ages 6 to 11.

In its General Survey of 2012 on the fundamental Conventions, the Committee observed that if compulsory schooling comes to an end before children are legally entitled to work, a vacuum may arise which regrettably opens the door for the economic exploitation of children (paragraph 371). The Committee therefore considers it desirable to raise the age of completion of compulsory schooling so that it coincides with the minimum age for admission to employment or work, as provided for in Paragraph 4 of the Minimum Age Recommendation, 1973 (No. 146). The Committee therefore encourages the military authorities to take the necessary measures to make education compulsory until the minimum age for admission to employment, namely 14 years.

Article 2(1). Scope of application and labour inspection. The Committee observes that, while the Factories Act, 1951, applies to factories/manufacturing and the Shops and Establishments Law, 2016, applies to shops and establishments, the Child Rights Law, 2019, is not limited to any particular sector of the economy.

In this regard, the report of the military authorities indicates that the Factories and General Labour Laws Inspection Department (FGLLID) enforces the provisions of the labour laws, including the Factories Act and the Shops and Establishments Law to factories, shops and establishments. The military authorities further indicate that there are 80 occupational safety and health inspectors and 63 labour law inspectors, totalling 143 inspectors in the FGLLID. In the course of their regular inspections, these inspectors visit factories, workshops, shops and workplaces and conduct inspections to check whether they are complying with the provisions in accordance with the laws related to child labour. In addition, awareness raising for workers and employers are being held to understand labour laws and provisions about child labour. From 1 January 2021 to 15 May 2022, the 34,414 workers from 1,073 factories, shops and establishments were given awareness raising training. It is also planned to conduct awareness raising training to 3,168 factories, shops and establishments during the period from April 2022 to March 2023.

However, the Committee notes that the report of the military authorities is silent as regards the application of legislation to other sectors of the economy. The Committee observes in this regard that section 117 of the Child Rights Law provides that its offences fall under the jurisdiction of the police. Considering the important number of child labourers working in sectors of the economy other than manufacturing and trade and retail (in shops and establishments), and considering in particular the significant number of child labourers found in agriculture, the Committee requests the military authorities to indicate the measures taken or envisaged to ensure that these children benefit from the protection of the provisions of the Convention. In this regard, the Committee requests the military authorities to provide information on the manner in which the provisions of the Child Rights Law regarding the minimum age for employment or work of 14 and the prohibition of hazardous work to children under 18 years are being applied in practice, and by which law enforcement body. In addition, the Committee requests the military authorities to provide information on the application of the Factories Act, the Shops and Establishments Law and the Child Rights Law on the informal economy and children working on their own account.

Article 3(1). Minimum age for hazardous work. The Committee notes that the Factories Act does not contain a general prohibition of hazardous work for children under the age of 18. On the other hand, section 14(d) of the Shops and Establishments Law provides that no person under the age of 18 shall be required or allowed to work in dangerous work or in a dangerous workplace. Finally, the Child Rights Law clearly defines hazardous work as one of the worst forms of child labour and prohibits it for all children under 18 years. Considering that more than half of child labourers are engaged in hazardous work in Myanmar, the Committee requests the military authorities to take measures to ensure the general application of the prohibition contained in the Child Rights Law in all sectors, and particularly in agriculture and manufacturing, and to provide information in this regard. The Committee also requests the military authorities to provide information on the application in practice of section 14(d) of the Shops and Establishments Law.

Article 3(2). Determination of types of hazardous work. The Committee notes that section 49(a) of the Child Rights Law provides that the Ministry of Labour, Immigration and Population shall establish the hazardous types of employment and sites in consultation with the relevant organizations of employers and workers. In this regard, the report of the military authorities indicates that the hazardous work list for children has been drafted and that it is being processed for approval and release. The Committee requests the military authorities to take the necessary measures to ensure that the draft list determining the types of hazardous work prohibited for persons under 18 years of age is adopted in the near future, and to provide information on the progress made in this regard.

Article 5. Limitation of the scope of application of the Convention. The Committee notes that the application of the Convention was limited to the branches of economic activity set forth in Article 5(3).The Committee requests the military authorities to provide information on its general position as regards the employment or work of children in the branches of activity which are excluded from the scope of application of the Convention. It also requests the military authorities to indicate any progress made towards a wider application of the provisions of the Convention, in accordance with Article 5(4)(a) of the Convention.

Article 6. Vocational training and apprenticeships. The Committee requests the military authorities to provide information, if any, about the laws or regulations applicable to young persons under 14 years engaged in vocational training or to persons over the age of 14 years training in enterprises, in accordance with Article 6 of the Convention.

Article 7(1), (3) and (4). Minimum age for admission to, and determination of, light work. The Committee notes that the military authorities do not provide any information on the regulation of light work in their report, and that there does not appear to be a lower minimum age for admission to light work in the legislation of Myanmar, and therefore no determination of light work activities.

The Committee observes that, according to the 2015 Myanmar Labour Force Survey, of the 616,815 children trapped in hazardous work likely to harm their physical, mental or moral development, 24.1 per cent were between 12 and 14 years of age, and that the 12–14 years age group tended to work very long hours. The Committee recalls that, under the flexibility provisions of Article 7(1) and (4) of the Convention, national laws or regulations may permit the employment or work of persons aged 12 to 14 years in light work, provided that such work is not likely to be harmful to their health or development. The Committee also recalls that under Article 7(3) of the Convention, the competent authority shall determine what is light work and shall prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken. The Committee therefore requests the military authorities to provide information on the measures taken or envisaged to adopt and implement light work regulations to ensure that work performed by children aged 12 to 14 is not harmful to their health or development.

Article 9(1). Sufficiently effective and dissuasive penalties. The Committee notes that section 85 of the Factories Act provides that the manager or occupier (“the person who has ultimate control over the factory and the affairs of the factory”) who contravenes any provisions of the Act shall be punishable with imprisonment for up to three months or with a fine of up to 500 rupees or both (the rupee being the currency of Burma between 1852 and 1952, which was replaced by the Burmese kyat in 1952 at par). If the manager/occupier continues to contravene, each of them shall be punishable for each day that they continue to offend with a fine that may extend to 75 rupees. The Committee further notes that section 27 of the Shops and Establishments Law provides that any employer who violates any provision contained in section 13 and 14, shall, on conviction, be punished with imprisonment for a term not exceeding six months and/or with a fine which may extend from a minimum of five million kyats (approximately US$2,382.00) to ten million kyats (approximately US$4,765). Moreover, section 103(a) of the Child Rights Act provides that whoever: (i) employs a child to perform work which could pose physical or psychological harm or harm on the child’s dignity; or (ii) employs or permits a child to perform work which is hazardous or harmful to health, shall, upon conviction, be punished with imprisonment for a term of minimum 8 months to maximum 5 years and may also be punished with a fine of minimum 800,000 Kyat (approximately US$380) to maximum 1,600,000 Kyat (approximately US$760). According to section 108: “Committing any of the offences or prohibitions stipulated in this law, including exploitation, which was not specified for separate punishment by this law shall be punished by one of the relevant existing legislations.”

The Committee recalls that Article 9(1) of the Convention requires the adoption of adequate and sufficiently dissuasive penalties to ensure the application of its provisions. Considering the divergence in the amounts of the fines, the Committee requests the military authorities to provide information on: (i) measures taken or envisaged to ensure that the fines provided under the Factories Act are updated to the currency and standards of living of the day; and (ii) the reason for the much lower amount of the fines envisaged under the Child Rights Act, in comparison with the amounts of the fines under the Shops and Establishments Law, for offences which are more serious under the Child Rights Act.The Committee further requests the military authorities to provide information on the types of violations detected by the labour inspection services or other relevant law enforcement bodies, the number of persons prosecuted and the penalties applied.

Article 9(3). Registers of employment. The Committee takes note of section 81(1) of the Factories Act which, in combination with article 77 on medical certification, ensures that the manager of every factory in which children are employed shall maintain a register of child workers to be made available to the Inspector at all times. The Committee observes, however, that this obligation is not clearly provided for in the Child Rights Law and the Shops and Establishments Law. The Committee recalls that, pursuant to Article 9(3) of the Convention, employers must keep registers containing the names and ages or dates of birth, duly certified wherever possible, of persons whom they employ or who work for them and who are less than 18 years of age. The Committee therefore requests the military authorities to indicate the measures taken or envisaged to ensure that employers are legally obliged to keep registers of all persons below the age of 18 years who work for them, not only in factories but in all sectors to which the Convention applies, in conformity with Article 9(3) of the Convention.

Application of the Convention in practice.The Committee requests the military authorities to provide updated statistical information on the nature, extent, and trends of child labour, indicating the sectors of economic activity where child labour is more prevalent.