Demande directe (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

The Committee notes the information provided by the Government in its report. It also notes the communication of the Malawi Trade Union Congress (MCTU) and the Government’s comments on the matter raised therein.

Article 2, paragraph 1, of the Convention. 1. Scope of application. In its previous comments, the Committee noted that, according to various provisions of Employment Act No. 6 of 2000 [hereinafter Employment Act], in particular section 3, which defines the term “employee”, this Act is applicable only where there is an employment contract or labour relationship. The Government indicated that sections 3 and 4 of Occupational Safety, Health and Welfare Act No. 21 of 1997 are supplementary to the Employment Act. Nevertheless, the Committee observed that section 3 of this Act, which defines the term “workplace” as “any premises in which, or within the close or curtilage or precincts of which, one or more persons are employed”, and section 4, which stipulates that this Act shall apply to all workplaces as defined in section 3, do not cover self-employment. It therefore requested the Government to indicate the measures taken or envisaged to ensure the application of the Employment Act to all types of work, including work carried out by children who are self-employed. In this regard, the Committee notes the Government’s indication that it will consult with all stakeholders to solicit their views for a possible review of the laws. The Committee recalls that the Convention covers all types of employment or work, whether under a labour relationship or contract of employment or not, including work done on a self‑employed basis. It therefore requests the Government to provide information on the outcome of the consultations on a possible review of the laws to ensure the application of the Employment Act to all types of work, including work carried out by children who are self-employed.

2. Minimum age for admission to employment or work. The Committee previously noted that the provisions of section 97 of Inland Waters Shipping Act No. 12 of 1995 refer to the definition of young persons given in the Children’s and Young Persons’ Act (Chapter 26:03). It requested the Government to supply a copy of the Children’s and Young Persons’ Act (Chapter 26:03) to enable it to confirm that Inland Waters Shipping Act No. 12 of 1995 prohibits access to work or employment for persons aged below 14 years on means of transport registered in the national territory. The Committee takes due note that section 2 of this Act defines the term “young person” as “a person who, in the absence of legal proof to the contrary, is, in the opinion of the court having cognizance of the case in relation to such person, 14 years of age or upwards and under the age of 18 years”.

Article 3, paragraph 1. Minimum age for admission to hazardous work. In its previous comments, the Committee noted a discrepancy between article 23 of the country’s Constitution, which provides for protection from dangerous work for children aged below 16 years, and section 22(1) of the Employment Act, which, in accordance with the Convention, lays down a minimum age of 18 years for work that is likely to be harmful to the health, safety, education, morals or development of such persons or prejudicial to their attendance at school or any other vocational or training programme. The Committee took note of the Government’s indications that the Tripartite Labour Advisory Council would discuss the issue in a meeting scheduled to take place in 2005. The Committee requested the Government to communicate the results attained from the discussion of this matter in the Tripartite Labour Advisory Council.

The Committee notes the Government’s indication that a tripartite meeting was held from 21 to 22 July 2005. It also notes that, during that meeting, an ILO official working on the ILO’s Improving Labour Systems in Southern Africa project (ILO/ILSSA project) presented a report on an analysis of the national labour legislation of Malawi and it was agreed by all social partners that there is a need to harmonize the provisions of the national laws on the legal age for employment. The Government also indicates that it will inform the Committee on any progress made regarding this matter. The Committee hopes that the Government will take the necessary measures, in conformity with Article 3, paragraph 1, of the Convention, to ensure that national labour legislation provides for a minimum age of 18 for admission to hazardous work.

Article 3, paragraph 2. Determination of types of hazardous work. The Committee previously noted that, in the implementation of section 22(2) of the Employment Act, the Minister can, in consultation with appropriate organizations of employers and employees, specify, by notice published in the Gazette, occupations or activities which, in his opinion, are likely to be: (a) harmful to the health, safety, education, morals or development of persons between the ages of 14 and 18 years, or (b) prejudicial to their attendance at school or any other vocational or training programme. In this regard, the Government indicated that it would consult with appropriate organizations of employers and employees on this matter, after the ILO consultative Workshop on Child Labour Monitoring and Identification of Hazardous Child Labour. The Committee asked the Government to take the necessary measures to ensure that the types of hazardous work are determined either by the national legislation or the competent authority, and to provide information on the consultations held with organizations of employers and workers concerned on this subject.

The Committee notes the Government’s indication that the Ministry conducted consultative workshops in 11 districts in the country. It also notes that a draft list of hazardous employment or work has been established and it is ready to be discussed with stakeholders. However, due to financial difficulties, the Ministry has not been able to hold a consultative workshop with stakeholders. The Committee further notes the Government’s request that it would like to benefit from the financial assistance of the ILO to fund this workshop. The Committee hopes that, in order to adopt the list of hazardous types of employment or work as soon as possible, the Government will be able to hold a consultative workshop with stakeholders. It requests the Government to provide any information on the progress made in this regard.

Article 6. Apprenticeship and vocational training. In its previous comments, the Committee noted that section 21(2) of the Employment Act limits the prohibition of employment of children aged below 14 years by allowing work done in technical vocational schools or in other training institutions where this work is approved and supervised by the public authorities, or is part of a school or vocational training programme for which the school or institution is responsible. The Committee requested the Government to indicate the conditions laid down by the competent authority for any work done by children or adolescents and authorized for the purposes specified in this Article. In this regard, the Committee notes the Government’s indication that consultations with social partners have been held on this subject and it intends to have a final meeting when funds would be made available. The Committee hopes that the Government would be able to communicate the results attained from those consultations with the organizations of employers and workers concerned in the near future.

Article 7. Light work. In its previous comments, the Committee noted the Government’s indication that the occupations or activities in which young people below 14 years can be employed to do light work are determined by law. The Committee reminded the Government that light work is authorized only for children of “at least 12 years of age”. It therefore requested the Government to take the necessary measures to ensure that a minimum age for admission to light work would be set at 12 years and that persons between the age of 12 and 14 years would only be engaged in light-work activities. The Committee notes the Government’s indication that it will consult the social partners at its next meeting when reviewing the national labour laws in order to fix the minimum age for admission to light work. It reminds the Government that, under Article 7, paragraphs 1 and 4, of the Convention, national laws or regulations may permit the employment or work of persons aged 12­‑14 years in light work, which is: (a) not likely to be harmful to their health or development; and (b) not such as to 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. The Committee also recalls that, according to Article 7, paragraph 3, of the Convention, the competent authority shall determine what is light work and shall prescribe the hours during which, and the conditions in which, such employment or work may be carried out. It requests the Government to provide information on consultations held in this regard and to indicate the measures taken or envisaged to ensure that a minimum age for admission to light work is set at 12 years and that persons between the ages of 12 and 14 years are only engaged in light-work activities.

Article 8. Artistic performances. Referring to its previous comments, the Committee notes that the Government supplied a copy of the Censorship and Control of Entertainments Act (Cap. 21:01) of 1982.

Article 9, paragraph 3. Keeping of register by employers. The Committee previously noted that section 23 of the Employment Act lays down that every employer is required to maintain a register of persons aged below 18 years employed by or working for him/her. The Committee had also noted that, according to the Government’s report, the applicable parliamentary Act still did not have a model register and that a copy of the model register would be supplied once it was available. The Committee notes that the Government did not supply the copy of the model register. In its communication, the MCTU indicates that some estates do not have registers, particularly in commercial agriculture. In this regard, the Government indicates that labour inspectors have demanded labour registers when inspecting any workplace and, where no such register exists, the owner is advised to purchase one which is easily available at the Government Press or any bookshop. Noting the above indications, the Committee once again requests the Government to supply a copy of the model register.

Part III of the report form. Child labour inspections. Referring to its previous comments concerning labour inspectors, the Committee notes the Government’s indication that the Ministry has trained labour officers in labour inspection, particularly in child labour. As a result of the training sessions, the labour inspectors have been able to curb child labour in their various duty stations, and some have even prosecuted employers employing children. The Committee also notes the Government’s indication that the Ministry of Labour and Vocational Training secured 22 motorcycles from UNICEF, which have been distributed to 11 impact districts, and two motor vehicles which have also been deployed in two districts. The provision of these motorcycles has strengthened the labour inspections. Moreover, the Committee notes that the Government also received motorbikes from ILO/ILSSA. The Committee asks the Government to continue to supply information on measures taken or envisaged in order to improve the application of the Convention with regard to labour inspections on child labour.