Minimum Age Convention, 1973 (No. 138) Tim De Meyer Specialist on International Labour Standards and Labour Law Internat

1. Minimum Age Convention, 1973 (No. 138) Tim De Meyer Specialist on International Labour Standards and Labour Law International Labour Office BAO/EASMAT, Bangkok

2. C. 138 in the CRC context • States must protect children from economic exploitation (Art. 32 of the UN Convention on the Rights of the Child, 1989) • States must provide for (a) minimum age(s) for admission to employment, “having regard to … other international instruments”. • Provide for appropriate regulation of the hours and conditions of employment.

3. C. 138 in time • The first ILO Convention on child labour dates back to 1919 : C. 5 (Industry). • Since then 13 instruments followed, focussing on various branches of the economy. • C. 138 compiles and revises earlier instruments, covers all sectors of the economy.

4. The concept of C. 138 • Objective : to protect the child’s fullest physical and mental development, and thus to pursue a national policy to ensure effective abolition of child labour • putting children in “school” instead of at work is a fundamental institution of development, only improving working conditions will not do • minimum age standards help countries draw the line between acceptable and unacceptable work, and do not mean to eliminate all forms of work

5. C. 138 : Minimum ages General Minimum Age Light work Hazardous work (Article 2) (Article 7) (Article 3) Normally 15 years or more 13 years 18 years (16 years exception) Developing 14 years 12 years 18 years countries (16 years exception)

6. Exemptions C. 138 does not apply • to work in approved schools or training institutions for general vocational or technical education (Article 6) • to work undertaken by persons at least 14 years of age in undertakings for education or training purposes (“apprenticeship”)

7. Specific types of work • Individual exceptions to the general minimum age possible for “such purposes as” participation in artistic performances • Individual permit must specify hours of work and conditions of work

8. Scope of application • C. 138 in principle covers all economic sectors : - all forms of employment, - regardless whether it involves a contract, - self-employment, - remunerated or not, - within a family undertaking or outside; • within the national territory and on means of transport, even outside the national territory.

9. Issues : (1) Thai boxing • Applied medical research in Australia and the US unambiguously points to serious health hazards • If a tripartite consultation recognizes it as such, the normal 18 years limit can be lowered to 16 if provision is made for • full protection • adequate training

10. Issues : (1) Thai boxing • If a tripartite consultation recognized similarity to an “artistic performance”, no age limit applies, but C138 requires • individual permission • written stipulation of the hours of work and of the conditions of work

11. The concept of C. 138 (c’d) • comprehensive : achieving the objective requires coordinated action • legal action against exploiters • employment for parents • a degree of family income security • targeted interventions where e.g. health is a threat (e.g. HIV/AIDS)

12. The concept of C. 138 (c’d) • dynamic : the objective may be achieved over time, starting out from a minimum base defined by the ratifying State • historicity : C. 138 remains focused on the proper legal adoption and enforcement of minimum age standards (unlike C. 182)

13. Why ratify C. 138 ? • Ratification = willingness to engage in an official dialogue with the international community on a particular subject • Ratification = endorsement as a State that elimination of child labour is a fundamental institution of development • Ratification encourages other States (economic competitors) to follow suit

14. Why ratify C. 138 ? (c’d) • Ratification status • 134 countries worldwide, of which 2/3 in the last 10 years • in Asia Pacific : Cambodia, China, Fiji, Indonesia, Japan, RoKorea, Malaysia, Mongolia, Nepal, PNG, Philippines, Sri Lanka, Thailand, Viet Nam • AP prospects are bright (Lao PDR, Singapore)

15. Why ratify C. 138 ? (c’d) • C. 138 elaborates a fundamental principle and right at work, reaffirmed as such in the ILO 1998 Declaration and WTO Ministerial Declarations • C. 138 is one of the ILO’s 8 fundamental Conventions and is, as such, subject to an annual ratification campaign

16. Issues : (2) Domestic Work • Art. 4 of C. 138 allows exemption of limited categories of employment, but not hazardous activities • Common examples include • Domestic service in private households • Family undertakings • Home-work or other work outside the supervision of the employer

17. Issues : (2) Domestic Work • To be mentioned at the latest in the first Government report, submitted in the first year after the entry into force of the Convention • Careful : depending on the situation, domestic work spans a range of activities from acceptable work (e.g. children carrying out household chores) to a worst form of child labour

18. Issues : (3) Agriculture • Art. 5 allows States to initially apply C138 only to limited economic sectors, the minimum being : • mining and quarrying; • manufacturing; • construction; • electricity, gas and water; • sanitary services; • transport, storage and communication; • plantations and commercial agricultural undertakings

19. Issues : (3) Agriculture • The economic sectors to which C. 138 will apply must be declared at the time of ratification, otherwise it will be assumed that C. 138 applies to all economic sectors • Family and small scale agricultural undertakings producing for local consumption and not regularly employing hired workers can be excluded.