Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Minimum Age Convention, 1973 (No. 138) - China (Ratification: 1999)

Other comments on C138

Observation

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Article 3(1) of the Convention. Hazardous work performed through work–study programmes. The Committee previously noted the Government’s indication that the Ministry of Education had repeatedly issued circulars and increased its inspection efforts with a view to ensuring healthy development in work–study programmes. The Government also indicated that the work–study programmes must be incorporated into, and must abide by, normal teaching programmes and may not, for example, modify hours of work without prior permission. In addition, it indicated that schools that organize work–study programmes must ensure the safety of students by prohibiting participation in toxic, hazardous or dangerous types of activities or labour which exceed their physical capacity, and that local governments are required to analyse the manner in which work–study programmes are carried out on a local basis. The Committee noted, however, the 2014 report on the labour protection of interns in Chinese textile and apparel enterprises, carried out with ILO assistance, according to which 52.1 per cent of interns continue to work in conditions that do not meet national minimum standards for labour protection, and 14.8 per cent of interns are engaged in involuntary and coercive work. The Committee therefore noted with concern that a significant number of school children continue to engage in hazardous work within the context of work–study programmes. It also recalled that the technical assistance missions undertaken within the context of the Special Programme Account (SPA) project in 2013 addressed ways in which the legal framework could be strengthened with respect to protecting young persons engaged in work–study programmes.

The Committee notes the absence of information in this regard in the Government’s report. However, the Committee notes that the Ministry of Education, the Ministry of Finance, the Ministry of Human Resources and Social Security (MoHRSS), the State Administration of Work Safety and the China Insurance Regulatory Commission jointly issued the Management Regulations on internship of vocational-school students in 2016. Section 15 provides that students under 16 years of age shall not be engaged in on-job learning or on-job internship programmes, and that students under 18 years of age shall not be engaged in tasks which are prohibited by the Regulations on the special protection of minor workers. Section 16 of the Regulations prohibits work during public holidays, night work and overtime work for students. The Management Regulations further provide for the conclusion of internship agreements (section 12), the payment of remuneration (section 17), and the arrangement of compulsory insurance covering the whole internship period (section 35). According to section 27, the involvement of students under 16 years of age in on-job learning or internships shall be investigated and punished in accordance with the Regulations banning child labour. The Committee therefore requests that the Government take the necessary measures to ensure that the Management Regulations on internships for vocational-school students are effectively applied in practice, and to provide statistical information concerning the number and nature of infringements detected, as well as the specific penalties applied.

Article 8. Artistic performances. The Committee previously noted that section 13(1) of the 2002 Regulations Banning Child Labour provides that organizations for performing arts and sports may recruit professional artists and athletes under the age of 16 years upon consent from their parents or legal guardians. According to the report from the 2013 SPA technical assistance mission, there were 2.01 million performances in China in 2012, including 13,000 registered performing groups, half of which included children. The report noted the Government’s indication that employing units were responsible for children’s health and protection, and applicants had to provide proof that children were enrolled in compulsory education. According to the report, the Government representative indicated that no system of individual permits existed, although it had existed in the past but had been repealed by the 2002 Regulations Banning Child Labour. Finally, the Committee noted the consensus between the ILO and the MoHRSS that the issue of children and young persons engaged in artistic performances needed to be regulated in legislation.

The Committee notes the Government’s information in its report that, according to the working rules of school art education (Ministry of Education Order No. 13 of 2002), no entities or schools shall organize students to participate in any commercial artistic activities or commercial celebration activities. Further, the organization of students to participate in competitive activities or artistic activities organized by social groups, cultural sectors and other social organizations shall be reported to the higher authorities (section 11). However, the Government indicates that, as internal working rules of the education sector, this normative document lacks wider legal effect, and that the Ministry of Education is making efforts to incorporate it into the legislative process. The Government also states that the participation of children and adolescents in commercial performances mainly concerns artistic activities of public interest or for local tourism promotion, as well as other activities specially organized for children. The Committee recalls that, by virtue of Article 8 of the Convention, children below the minimum age of admission to employment or work of 16 years, who are employed in artistic activities, must apply for permits granted by the competent authority. Moreover, permits so granted shall limit the number of hours during which and prescribe the conditions in which employment or work is allowed. The Committee therefore once again requests the Government to take the necessary measures to enact national legislation that is in conformity with Article 8 of the Convention and which specifies that children below the minimum age of admission to employment or work of 16 years, who are employed in artistic activities, must apply for permits granted by the competent authority. Moreover, noting the absence of information, it once again requests that the Government provide information on the number of children who currently participate in commercial artistic performances and professional sports activities, and who fall within the exception provided for by section 13(1) of the 2002 Regulations Banning Child Labour.

Article 9(1). Labour inspectorate and penalties. The Committee previously noted that it was difficult to assess the extent of child labour owing to a lack of official reporting on cases and the lack of transparency in statistics. The Committee also noted that the Government had employed labour security advisers from trade unions and other institutions, to monitor the compliance of employers with national labour laws and regulations. The Government indicated that the labour inspectorate implements the provisions of national legislation prohibiting child labour and regularly monitors implementation through routine and ad hoc inspections, investigation of complaints and verification of cases reported by informants, written requests and other forms of supervision and law enforcement.

The Committee notes the Government’s information that, by the end of 2016, the labour inspection system consisted of 4,672 labour security inspection departments, 26,000 full-time labour security inspectors, 26,700 part-time inspectors, and 72,100 inspection assistants. The labour inspectorate carries out law enforcement activities jointly with departments of public security, industry and commerce, administration of work safety and public health, with regard to child labour. The Government states that the illegal use of child labour is rare, and to date, no case has been found concerning the complicity by labour inspectors in this regard.

The Committee notes with regret the Government’s statement that the data on investigations and penalties regarding child labour is considered confidential and cannot to be provided. However, the Committee notes that, according to the Measures on the Disclosure of Major Labour Violations to the Public (MoHRSS Order No. 29 of 2016), the Departments of Human Resources and Social Security must publish the cases of major labour violations which have been investigated and closed, including the violations of the Regulations Banning Child Labour, among others (section 5(5)). Moreover, the information published shall include the name and address of the perpetrators, the nature of violations and the decisions made by the competent authority (section 6). The Committee reminds the Government that, Article 9(1) of the Convention requires that the Government take all necessary measures to ensure the effective enforcement of the Convention, and that, as required by Part V of the report form, the Government shall provide information on statistical data on the employment of children and young persons, extracts from the reports of inspection services, information on the number and nature of contraventions reported, etc., which give a general appreciation of the manner in which the Convention is applied. The Committee therefore once again urges the Government to take the necessary steps to ensure that sufficient updated data on the situation of working children in China 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. It also once again requests that the Government provide information on the number and nature of violations detected by the labour inspectorate, the number of persons prosecuted and the penalties imposed.

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