Paragraphe II
:
An application
however limited in
national legislations
Convention n°138 on the minimum age made hope for the end
of the child work. However, it of it was nothing because the developing
countries which cannot or not wanting to integrate this convention in their
national legislations, had recourse to the versatility contained in this
convention. Indeed, while fixing a minimum age applicable in theory to all the
branches of industry, that children work there or not like employees,
convention n°138 contains provisions which give him a certain flexibility
intended to allow the phased introduction of it. Thus, the countries whose
school economy and institutions are not sufficiently developed can specify, in
first stage, 14 years a minimum age instead of 1522(*), which causes to lower the
minimum age for light work from 13 to 12 years. However, there is not
corresponding exception for the dangerous activities, pursuant to the principle
according to which the level of development cannot be used as excuse to allow
that children are assigned to tasks likely to compromise their health, their
safety or their morality.
Convention n°138 presents also a certain flexibility with
regard to the sectors or activities aimed since it authorizes the States to be
excluded from the limited categories of employment or work, when its
application to its categories would raise special and important difficulties of
execution23(*). It does
not specify these categories, but it was made mention, during preliminary
works, of employment in the family companies, the domestic services at the
private individuals and certain types of work carried out apart from the
control of the employer, for example the domestic industry. These exclusions
primarily hold with the practical difficulties that the application of the law
raises to the categories concerned, and not of course with the absence of risks
of exploitation or abuse.
In addition, convention gives to the developing countries the
possibility of initially limiting its field of application by specifying the
branches of economic activity or the types of companies to which it
applies : article 5 stipulates that « any member whose economy
and the administrative services did not reach a sufficient development will be
able, after consultation of the interested organizations of employers and
workers, if there are some, to limit, in a first stage, the field of
application of this convention. » However in this same article it is
specified that the field of application of convention will have at least to
include/understand the seven following sectors : minings ;
manufacturing industries ; the construction industry ; electricity,
gas and water ; medical services ; transport, warehouses and
communications ; plantations and other agricultural companies exploited
mainly at commercial purposes (other than the family or low-size
companies)24(*). Different
other provisions envisage exceptions or exemptions, for example that which
excludes the work carried out within the framework from certain types of
teaching or formation or that which makes it possible to authorize the
participation of the children artistic spectacles as well as the possibility of
fixing the minimum age of the training at 14 years. If they are dangerous
activities, the application of these provisions requires the greatest
precautions. Thus, the participation in artistic spectacles can present serious
health risks or the morality of the young people. This is why certain countries
prohibit to make them work in the establishments such as boxes of the night,
cabarets and circuses, where there is moreover a risk of sexual exploitation.
Other countries on the contrary, like Thailand, allow the child work in the
night clubs and the bars as from 15 years25(*). As for the formation, it can be a subterfuge making
it possible to the employers continuously to impose a heavy work on children
not having reached the minimum age. It is thus essential to carry out controls
and with inspections to make sure that the young people receive a true
formation under suitable conditions and are not constrained on this occasion to
carry out dangerous tasks. Convention makes obligation at the proper authority
to take all measurements necessary including adapted sanctions, in order to
ensure the effective application of its provisions. The sanctions noted here
are those which will be envisaged by the national legislation for the
infringements with the provisions giving effect to convention.
The near total of the countries obtained a legislation today
aiming prohibiting the employment of the children not having reached a certain
age and at regulating the working conditions for those which reached the
minimum age. The majority fixed an age more raised for dangerous work,
prohibiting certain activities with the young people of less than 18 years.
Nevertheless, of many gaps remain especially with regard to the field of
application of these laws and their concrete application, sometimes for lack of
resources necessary to ensure control and the application of it, sometimes
fault of political good-will, but often simply because the authorities are
disarmed vis-a-vis a largely invisible phenomenon and which thrives on social
plagues as deeply enracinés as the cultural poverty, discrimination and
prejudices.
The examination of the various legislations of the 155 Member
States of ILO26(*) made it
possible to note that, if the majority of the countries adopted a legislation
envisaging a basic minimum age for the admission of the children to employment
or work, numbers of them do not conform to the convention n°138 which
prescribes to fix a single minimum age for the admission at all the types of
employment : only 33 countries did it, and that is practical current only
in Europe. The usual formula consists in fixing a minimum age which applies
only to certain sectors or activities. Another formula, which a quarter of the
Member States chose, consists in fixing different ages for various economic
sectors, while excluding completely certain sectors or activities.
Approximately 45 countries conform to the spirit of convention since they fix
the minimum age of admission at employment at 15 years and 37 countries
fix it at 14 years. The 15 years limit has especially course in Europe and that
14 years in the rest of the world. The minimum age is 16 years in 23 country
and 15 to 16 years in four others. Consequently, 122 countries at least have a
legislation prohibiting the child work of less than 14 years, at least in
certain sectors. On the other hand, in 30 countries, the children of less than
14 years have the right to work and in 6 the minimum age is only 12 years. It
is in Africa and Asia, the largest suppliers of childish labor that the fork
minimum is broadest : the minimum age varies there from 12 to 16 years.
Moreover, because of relative flexibility of convention n°138, agriculture
is excluded from its field of application in 38 countries located for the
majority in Asia. On the other hand, the industrial activities always return in
the field of application of convention, and this in all the countries. One of
the most current exclusions, envisaged by an about sixty country, relates to
the family companies, defined in a more or less broad way, as well as the
domestic services.
About half of the countries authorize the children of a lower
age at least general to carry out certain types of light work : 13
countries withdraw certain types of work from any restriction, but the majority
fixes for this work a minimum age of 12,13 or 14 years.
These exclusions highlight perfectly the serious legal gaps or
at least the important limits as for the part which the legislation is supposed
to play in the fight against the child work. Indeed, as we saw previously it
are in these excluded branches of industry, i.e. in the agricultural sector and
the domestic services, like in the small workshops and the family companies
operating in the sector not structured, that one finds the majority of the
children who work. To cure these gaps, the international community decided to
adopt a great convention taking again all the principles having to govern the
rights of the children, by the means of the United Nations.
* 22 Article 2
subparagraph 4 Convention n°138
* 23 Article 4 subparagraph 1
Convention n°138
* 24 Article 5 subparagraph 4
Convention n°138
* 25 UNICEF, the situation of
the children in the world, report/ratio 1997, New York
(Web site :
www.unicef.org/french/sowc97/sowc97f3.pdf)
* 26 The ILO :
« Child work : the intolerable one in point of test card
» Report/ratio VI (1), International Labor Conference, 89ème
session, 1998, Geneva, 1996.
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