Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Minimum Age Convention, 1973 (No. 138) - Mozambique (Ratification: 2003)

Other comments on C138

Observation

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Article 2(1) of the Convention. Scope of application. 1. Children working on their own account and in the informal sector. In its previous comments, the Committee noted that pursuant to sections 1 and 2 of the Labour Law No. 23/2007 (Labour Law), this Law only applies in the context of a labour relationship. It had noted the Government’s indication that, in Mozambique, there is no specific regulation governing children who are working outside of an employment relationship, such as those working in the informal economy. In this regard, the Committee had noted the Government’s statement in its report to the Committee on the Rights of the Child (CRC) of 23 May 2009, that informal trade is one of the most common forms of labour in which children are involved in Mozambique (CRC/C/MOZ/2, paragraph 356). The Government had also indicated that the control mechanisms for child labour, such as labour inspection, were more effective in the formal than in the informal sector (CRC/C/MOZ/2, paragraph 359). The Committee had finally noted that the CRC, in its concluding observations of 4 November 2009, expressed concern that that there were still no specific regulations governing children who are not covered by an employment relationship (CRC/C/MOZ/CO/2, paragraph 80).

The Committee notes that the Government’s report contains no information on this matter. Recalling that the Convention applies to all branches of economic activity and covers all types of employment or work, whether or not there is a contractual employment relationship, the Committee encourages the Government to take measures to strengthen the capacity and expand the reach of the labour inspectorate to better monitor children carrying out economic activities without an employment relationship or in the informal economy. It requests the Government to provide information on the measures taken in this regard.

2. Domestic work. The Committee had previously noted section 4(2) of the Regulations on Domestic Work (Decree 40/2008) which prohibits domestic work by children under 15 years, while permitting children of 12 years to be hired for domestic work with the permission of a legal representative. The Committee had requested the Government to take the necessary measures to ensure that no child under the age of 15 years is permitted to engage in domestic work, except under the specific conditions laid down in Article 7 of the Convention for light work.

The Committee notes that the Government’s report does not provide for a response to its previous comments, but states that section 4(2) of the Regulation on Domestic Work prohibits hiring minors under the age of 12 years for domestic work. The Committee once again reminds the Government that pursuant to Article 2(1) of the Convention, no person under the minimum age (of 15 years) may be engaged in economic activity, including in domestic work, with the exception of light work for children of at least 13 years of age that can only be carried out under conditions laid down in Article 7 of the Convention. The Committee therefore once again requests the Government to take the necessary measures to ensure that no person under the age of 15 is permitted to engage in domestic work, except under the specific conditions laid down in Article 7 of the Convention for light work.

3. Rural work. The Committee had previously noted the Government’s statement that the minimum age for admission to employment established in the Labour Law (of 15 years of age) applies to children working in rural work. It had also noted the Government’s indication that pursuant to section 3 of the Labour Law, draft regulations on rural work have been developed and was under discussion. The Committee had noted the information from UNICEF indicating that hazardous labour activities involving children were mostly related to farm work either in the cotton or tobacco industries. It had also noted the statement by the CRC, in its concluding observations of 4 November 2009, that child labour remained a common practice on commercial cotton, tobacco and tea plantations and on family farms where children may, for example, herd livestock (CRC/C/MOZ/CO/2, paragraph 79).

The Committee notes the Government’s information that the proposal for the instrument on rural work is still under discussion. The Committee also notes that according to the Multiple Indicators Cluster Survey (MICS) report of 2008, in rural areas, 25 per cent of children are engaged in child labour, compared to 15 per cent in urban areas. Expressing its concern at the situation of children involved in child labour, especially agriculture, the Committee once again requests the Government to take the necessary measures to ensure that the minimum age of 15 is applied in practice to this sector. It also requests the Government to provide a copy of the regulation on rural work, once it has been adopted.

Article 2(3). Age of compulsory schooling. The Committee had previously noted the Governments statement that compulsory education started at the age of 6 years and was completed at the age of 13 years. It had therefore observed that the age for completion of compulsory schooling was two years below the minimum age for admission to employment or work (15 years). The Committee had also noted that the CRC, in its concluding observations of 4 November 2009, commended the significant efforts deployed by the Government to increase enrolment rates in primary and secondary education (CRC/C/MOZ/CO/2, paragraph 71). However, the CRC expressed concern that, nearly half of primary school aged children drop out of school before they completed grade 5 (ibid.).

With regard to the age of completion of compulsory schooling, 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). In cases where these two ages do not coincide, various problems can arise. If the compulsory schooling comes to an end before children are legally entitled to work, there may arise a vacuum which regrettably opens the door for the economic exploitation of children (see General Survey of 2012 on the fundamental Conventions concerning rights at work, paragraph 371). Accordingly, the Committee strongly encourages the Government to consider raising the age of completion of compulsory education so as to coincide with that of the minimum age of 15 years for admission to employment or work. It requests the Government to provide information on any progress made in this regard. Furthermore, considering that compulsory education is the most effective means of combating child labour, the Committee requests the Government to take the necessary measures to strengthen the functioning of the education system, in particular by increasing the school enrolment, attendance and completion rates of children under the minimum age of employment with special focus on children in rural areas.

Article 3(2). Determination of hazardous types of employment or work. The Committee had previously noted that section 23(2) of the Labour Law prohibited employers from employing children under the age of 18 years in work that is unhealthy, dangerous or which required great physical strength, as defined by the competent authorities, after consultation with trade union and employers’ organizations. It had noted the Government’s statement that no measures had been adopted to determine types of dangerous work prohibited to persons aged under 18 years. The Committee had further noted that the CRC, in its concluding observations of 4 November 2009, urged the Government to define hazardous work prohibited for persons under 18 years old (CRC/C/MOZ/CO/2, paragraph 81).

The Committee notes the absence of information in the Government’s report. The Committee, therefore, once again recalls that, by virtue of Article 3(2) of the Convention, the types of employment or work which, by their nature or the circumstances in which they are carried out are likely to jeopardize the health, safety or morals of young persons, 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 once again urges the Government to take the necessary measures to include in national legislation provisions determining the types of hazardous work prohibited for persons under the age of 18, in accordance with Article 3(2) of the Convention.

Article 6. Vocational training and apprenticeship. The Committee had previously noted that Chapter IV of the Labour Law regulates vocational training and apprenticeship. It had noted that under section 248(3) of the Labour Law, enterprises or establishments may not admit minors under 12 years of age for apprenticeships. Noting the absence of information in the Government’s report, the Committee once again reminds the Government that Article 6 of the Convention authorizes work to be carried out by young persons within the context of an apprenticeship programme only from the age of 14 years of age. In this regard, the Committee once again requests the Government to take measures to ensure that no minor under 14 years of age is permitted to enter into an apprenticeship programme, in conformity with Article 6 of the Convention.

Article 7(1). Minimum age for admission to light work. The Committee had previously noted that, by virtue of section 21(1) of the Labour Law, an employment contract entered into directly with a minor between 12 and 15 years of age shall only be valid with the written authorization from the minor’s legal representative. In this regard, the Committee had recalled that pursuant to Article 7(1) of the Convention, national laws or regulations may only permit the employment or work of persons of 13 and 15 years of age on light work, provided that such work is not likely to harm their health or development, or prejudice their attendance at school, their participation in vocational orientation or training programmes approved by the competent authority or their capacity to benefit from the instruction received. Noting an absence of information on this point in the Government’s report, the Committee once again requests the Government to take the necessary measures to bring the Labour Law into conformity with Article 7(1) of the Convention by permitting children only from the age of 13 in light work.

Article 7(3). Determination of light work. The Committee previously noted that under section 26(2) of the Labour Law, the Council of Ministers shall issue a legal diploma establishing the nature and the conditions of work that may be performed, in exceptional circumstances, by minors of between 12 and 15 years of age. It had also noted the Government’s statement that children between the ages of 12 and 15 years may not be employed in work that is likely to be harmful to their health. The Committee had further noted the statement in the Government’s report that the light work referred to in the Labour Law has not been classified.

Noting the absence of information in the Government’s report, the Committee once again reminds the Government, that pursuant to Article 7(3) of the Convention, the competent authority shall determine what constitutes light work and shall prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken. Observing that a significant number of children under the minimum age are engaged in child labour, the Committee once again requests the Government to take the necessary measures to regulate this work by determining the types of light work activities permitted for children between the ages of 13 and 15, including the hours during which, and the conditions in which, such employment or work may be undertaken.

Article 9(3). Keeping of registers by employers. The Committee had previously noted that the Labour Law does not prescribe the registers to be kept by employers. It had reminded the Government that under Article 9(3) of the Convention, national laws or regulations or the competent authority must prescribe the registers concerning employees under the age of 18, which shall be kept and made available by the employer. Noting once again an absence of information in the Government’s report on this point, the Committee requests the Government to take the necessary measures to ensure that national laws or regulations or the competent authority prescribe the registers or other documents which shall be kept and made available by the employer containing the names and ages or dates of birth, duly certified, wherever possible, of persons under the age of 18 years who work for them, in conformity with Article 9(3) of the Convention.

The Committee strongly encourages the Government to take into consideration the Committee’s comments on discrepancies between national legislation and the Convention. In this regard, the Committee reminds the Government that it may avail itself of ILO technical assistance to bring its legislation into conformity with the Convention.

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