International Labour Organization Convention No. 138: Convention concerning Minimum Age for Admission to Employment
Introduction
2.1
The International Labour Organization Convention No. 138: Convention concerning Minimum Age for Admission to Employment (the Convention) was adopted on 26 June 1973 and entered into force on 19 June 1976.
2.2
The purpose of the Convention is to abolish child labour and to protect the right of children to attend school. It contains provisions to ensure that types of economic activity that may be undertaken by children will be regulated, and that children’s health, safety and morals will be protected.
2.3
The Convention contains, subject to some exceptions, three key obligations:
a requirement to specify the age of completion of compulsory schooling, and in any case not less than 15 years (or 14 for some Members), as the minimum age for admission to employment or work
a requirement to establish 18 years as the minimum age for hazardous work (employment or work that is likely to jeopardise the health, safety or morals of young persons), or 16 under certain circumstances
where permitted by national laws, a requirement to specify the conditions for children no younger than 13 years to undertake light work.
Background
Child labour
Definition of child labour
2.4
‘Child labour’ is not the same as children engaging in work; it refers to particular types of work undertaken by children, though there is no exact definition. According to the International Labour Organization (ILO), it is ‘often defined’ as:
… work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development. It refers to work that:
is mentally, physically, socially, or morally dangerous and harmful to children; and/or
interferes with their schooling by: depriving them of the opportunity to attend school; obliging them to leave school prematurely; or requiring them to attempt to combine school attendance with excessively long and heavy work.
2.5
This definition is vague and relative in many respects because, according to the ILO, the child’s age, the type and hours of work performed, the conditions under which work is performed, and the objectives pursued by individual countries are all factors in determining whether any particular ‘work’ constitutes ‘child labour’.
2.6
Research has shown that work can benefit youth and their families by increasing household income, covering the costs of education, and developing skills and social agency. However, researchers have found ‘the bulk of the evidence suggests that except in cases where a youth works only a few hours per week, child and youth labor is harmful to development, educational success and health’.
Objections to child labour
2.7
Child labour is opposed for a number of moral and economic reasons, including:
child labourers are subject to economic exploitation because they are paid the lowest rates
child labour replaces adult labour because it is cheaper and more compliant
children usually work under the worst working conditions, which has long-term physical and psychological implications
child labour perpetuates poverty because children are deprived of education and healthy physical development
it allows countries to benefit from ‘unfair trade’ due to low production costs.
Reasons for the existence of child labour
2.8
Child labour, which globally is generally provided by poorer households, has a ‘triangular foundation’, facilitated by:
employers—who benefit economically
parents—who usually have no other options
governments—who fail to enforce their laws or appropriately fund education, either intentionally or because they do not have the capacity to do so; sometimes refuse to recognise a problem exists; or employ children themselves in government enterprises.
2.9
It is widely held that child labour derives from poverty but persists with a range of interrelated problems, including: an unskilled adult labour force, poor and exploitative work conditions, weak labour laws and unions, inadequate social services, particular economic policies, and specific population demographics that create high dependency ratios.
2.10
Child labour is often opposed through trade sanctions, import restrictions, and consumer boycotts. However, without addressing the root causes, research suggests such approaches are unlikely to be effective and may result in greater harm.
Incidence of child labour
2.11
According to the ILO:
globally, approximately 9.6 per cent of children (aged 5 to 17), or 160 million, are in child labour
as a region, Asia and the Pacific (5.6 per cent of children or 48.7 million) is second to Africa (21.6 per cent of children or 92.2 million) in terms of the number of children in child labour
globally, child labour is most prevalent in agriculture (70 per cent), followed by services (19.6 per cent) and industry (10.3 per cent)
children in child labour are most likely to be contributing family workers (71.2 per cent), followed by employees (17.3 per cent) and own-account workers (10.7 per cent)
35 per cent of children in child labour are not attending school (rising to 53.2 per cent for children between 15 and 17 years).
2.12
Though the number of children undertaking child labour has decreased from an estimated 245.5 million in 2000, progress has largely stagnated since 2016 with an estimated 160 million children in child labour in 2020.
2.13
Globally, the number of children in child labour in high income countries is estimated to be 1.6 million in 2020.
Compliance with the Convention
2.14
There are 175 Members to the Convention. The countries who have not ratified are: Australia, Cook Islands, Islamic Republic of Iran, Marshall Islands, New Zealand, Palau, Saint Lucia, Somalia, Timor-Leste, Tonga, Tuvalu, and the United States.
2.15
The majority of Members to the Convention have enacted laws to protect children and youth from work that interferes with their education, hazardous work, and work that is harmful to healthy development. Research has found Members to the Convention have stronger legal protections than non-Members, though compliance is not universal. The ILO itself has acknowledged in many countries, the legislation giving effect to the Convention applies only to formal labour relationships and not to those working in the informal economy, where the majority of child labour occurs.
2.16
A study of legislation using ILO data to 2016 found of the Members to the Convention:
56 per cent have established a minimum age for admission to employment of 15 years or older (when exceptions are considered), and almost 25 per cent have no explicit national minimum age
62 per cent legally protected children from hazardous work until age 18 (when exceptions that facilitate work for children under that age were taken into account)
62 per cent allow 16-year-olds to work eight or more hours on a school day
59 per cent guarantee to youth aged 16 at least 12 hours off from work at night.
2.17
However, legislation prohibiting child labour requires complementary policies (including policies addressing poverty), implementation and enforcement, and there are countries with minimum age laws and high rates of child labour.
2.18
The ILO has recognised:
… we will not eliminate child labour without free, compulsory and universal education up to the minimum age for entry into employment, nor will we ensure every child is in school unless we eliminate child labour.
2.19
Recommendation No. 146, which accompanies the Convention, stresses that national policies and plans of Members should provide for: poverty alleviation and the promotion of decent jobs for adults, so parents do not need to resort to child labour; free and compulsory education and the provision of vocational training; extension of social security and systems for birth registration; and appropriate facilities for the protection of children, and adolescents who work. It calls for laws setting the minimum age for work to be embedded in such comprehensive policy responses.
Child employment in Australia
2.20
According to the Department of Employment and Workplace Relations (DEWR), a survey in June 2022 found an estimated 214,500 children in Australia under 15 years of age had worked at some time in the past 12 months. A survey conducted in August 2022 found 367,100 children between the ages of 15 and 17 had been employed in the week of the survey.
2.21
Rather than necessarily indicating any unlawfulness, DEWR stated these figures referred to children engaging in work activities and reflected that ‘having children working is actually seen, within our society, as being an excellent development opportunity and an ability to get a work ethic’.
2.22
There is no centralised record of contraventions of child labour laws in Australia. The collection of data differs across jurisdictions and the Australian Federal Police. Limited data that was provided by DEWR indicated the known incidence of child labour in Australia was very low.
Previous Committee consideration of the Convention
2.23
The Convention was first referred to the Committee for consideration upon being tabled in the Parliament on 12 March 2013. The inquiry lapsed at the end of the 43rd Parliament. It was not subsequently re-referred by the incoming government.
Reasons cited by the Australian Government to ratify the Convention
2.24
The National Interest Analysis (NIA) provided several reasons for the Australia Government to ratify the Convention. According to the NIA, ratification would:
reflect Australia’s recognition of the importance of young people participating in the workforce in a safe and appropriate manner without prejudicing their schooling
complement measures taken to implement the ILO Convention (No. 182) concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, which Australia ratified on 19 December 2007
enable Australia to demonstrate policy leadership within the Asia-Pacific region, and to play a greater and more authoritative role in promoting better implementation of the Convention and measures to eliminate child labour in the region
strengthen Australia’s credentials within the broader international community.
2.25
During the public hearing, DEWR stated ratification of the Convention would complete Australia’s ratification of all the fundamental ILO conventions on forced and child labour, and would also:
… strengthen Australia's negotiating position on labour clauses in trade agreements, ensuring Australia can credibly reinforce its commitment to ending child labour and encourage other trade partners to do likewise.
2.26
In its submission to the inquiry, the Australia Council of Trade Unions (ACTU) indicated its support for ratification. It stated the Convention was ‘a key international instrument in the fight to eliminate child labour and forced labour’.
Key provisions in the Convention
Preamble
2.27
The preamble reinforces the need to achieve total abolition of child labour.
National policy
2.28
Article 1 requires Members to undertake to pursue a national policy to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.
Minimum age for employment
2.29
Article 2 requires the minimum age for admission to employment or work to be not less than the age of completion of compulsory schooling, and in any case for developed Members, not less than 15 years of age.
Current Australian practice
2.30
Many jurisdictions in Australia do not specify a minimum age for entry into employment or work, rather this is in effect enforced through compulsory schooling requirements, and other laws that regulate the participation of children in work.
2.31
According to DEWR, Australia would specify in its ratification, 15 as the minimum age for admission to employment or work in any occupation as this is the youngest age at which a child ceases to be of compulsory school age:
Generally, state and territory legislation requires children to participate in schooling (or an approved equivalent) to Year 10, and then participate in full-time schooling, approved training or employment, or a combination of these activities until the age of 17.
Minimum age for hazardous work
2.32
Where employment or work, by its nature or the circumstances in which it is carried out, is likely to jeopardise the health, safety or morals of young persons, the minimum age is not to be less than 18 years.
2.33
The types of work that constitute hazardous work are to be determined by national laws or regulations or the competent authority, following consultation with organisations of employers and workers concerned, where these organisations exist.
2.34
Under article 3(3), where certain conditions are met, hazardous work may be undertaken from the age of 16 years, providing the health, safety and morals of the young persons are fully protected, and the young persons have received adequate specific instruction or relevant vocational training.
Hazardous work in Australia
2.35
According to the NIA, legislation in states and territories permits children from 16 years to perform work that may be considered hazardous under the Convention—for instance, where young persons work on construction sites or farms, or commence an apprenticeship. Australia proposes to rely on article 3(3) to authorise certain types of hazardous work consistent with existing state and territory legislation.
2.36
However, notwithstanding the use of article 3(3), the Office of International Law in the Attorney-General’s Department ‘has expressed reservations that some State and Territory laws do not meet the minimum age requirements of Article 3 of the Convention in respect of hazardous work’.
2.37
In some states and territories, the NIA acknowledged the law does not preclude a person under the age of 16 years engaging in hazardous work. In combination, workplace health and safety laws, compulsory schooling requirements, and sector specific requirements only ‘significantly restrict[s]’ the circumstances in which this might occur, they do not prohibit it.
2.38
This argument was reiterated by DEWR in evidence to the Committee—when considered in isolation, some state and territory child employment and protection legislation does not explicitly rule out the possibility a child under the age of 16 would engage in hazardous work prohibited by the Convention.
2.39
However, various requirements in state and territory legislation limit, ‘in most fundamental respects’, the possibility a child would engage in work prohibited by article 3. These requirements across jurisdictions included: a principles-based duty of care; additional age limitations and conditions for certain types of work; requirements for high-risk work licences; compulsory schooling requirements; obligations in child employment and protection legislation; and sector-specific legislation.
2.40
Consequently, DEWR advised the Committee that ratification of the Convention would proceed on the basis Australia achieved broad overall compliance through the ‘robust framework’ provided by its system of domestic law and practice.
2.41
Nevertheless, the NIA stated the Commonwealth was committed to working with states and territories to align their laws with the Convention.
Light work
2.42
Members may permit persons between 13 and 15 years, and persons who are at least 15 years but have not yet completed compulsory schooling, to undertake light work. Light work is defined as work that is both:
not likely to be harmful to health or development
not such as to prejudice attendance at school, participation in vocational orientation or training programs approved by the competent authority, or capacity to benefit from the instruction received.
2.43
Where light work is permitted, the competent authority is to:
determine the activities in which employment or work may be permitted
prescribe the number of hours
prescribe the conditions under which the employment or work may be undertaken.
2.44
Australia proposes to use the exclusion provisions in article 4 in relation to the requirements for light work (see below).
Exclusions for certain types of work
2.45
Where special and substantial problems arise with the application of the Convention, and providing there has been consultation with any organisations of employers and workers, a competent authority may exclude limited categories of employment or work from the Convention’s requirements. Hazardous work cannot be excluded from the application of the Convention.
2.46
Where this occurs, Members must report in their first ‘article 22’ report on the exclusion and provide reasons for the exclusion, and thereafter on progress towards complying with the Convention.
2.47
While article 22 reports are not publicly available, DEWR advised it was aware of a number of Members who had made use of the article 4 exemption including Japan, Iceland, Philippines, Bahamas, Sri Lanka and Egypt. According to DEWR, the exemption was most commonly used to exclude work in family undertakings, domestic work and work on family ships or fishing vessels.
Australia’s proposal to exclude certain categories of work from the light work provisions
2.48
Australia proposes to rely on article 4 to exclude from the application of the Convention limited categories of work where children under 13 years may undertake light work—either because it is permitted by existing state and territory legislation, or because the type of work occurs in practice and the available evidence suggests such work is undertaken in beneficial circumstances without impact on the health and wellbeing of children.
2.49
The NIA stated the exact categories of work to be excluded ‘can differ between jurisdictions’, but common across jurisdictions was:
work in a family enterprise (for instance, a market stall, shop, farm)
delivery work (for instance, delivering newspapers or pamphlets in a local neighbourhood)
light domestic duties (for instance, lawn mowing, babysitting, light household chores)
volunteer work (for instance, collecting money or selling items for a registered charity, sporting organisation or not-for-profit organisation).
These categories of employment are all those which by their nature have been considered by Australian communities and governments as appropriate and safe ways for children to develop a work ethic and earn pocket money.
View of the Committee of Experts on the Application of Conventions and Recommendations
2.51
The ILO Committee of Experts on the Application of Conventions and Recommendations (Committee of Experts) clarified the meaning of article 4 in 1981. It stated, article 4 allows the exclusion of categories of employment or work in situations where it is not possible to supervise the application of legislation concerning some categories of employment or work.
2.52
While the Convention does not specify the occupations that might be excluded (this was to allow competent authorities the discretion to adapt the application of the Convention to the national situation), the sorts of work envisaged as part of preparing the Convention included: employment in family undertakings, domestic service in private households, and home work or other work outside the supervision and control of an employer.
2.53
Notwithstanding this flexibility, the Committee of Experts reiterated, the categories must be limited to occupations where there would be special and substantial problems in applying the Convention. The categories it had identified (above) may not be appropriate for exclusion in all cases, depending on national circumstances, and competent authorities should re-examine their legislation to determine whether the exceptions are truly necessary.
2.54
According to DEWR, it received advice from the ILO in 2019 on Australia’s compliance with the Convention under article 4:
The ILO office indicated that legislation of all jurisdictions appeared to meet conditions required by the Convention concerning the conditions under which light work may be undertaken and recognised the specific issue of Australian practice allowing children under 13 to work in some instances. The ILO office suggested Australia utilise exemptions under Article 4.
2.55
DEWR told the Committee similar flexibility provisions to those in article 4 were contained in other ILO conventions ‘to enable member States to ratify the Conventions when national circumstances would otherwise [pose] obstacles to compliance’.
2.56
Further, having considered jurisprudence from the Committee of Experts, DEWR stated, ‘we consider that declaring these categories of employment excluded from the outset would satisfy the Committee of Experts’.
Exclusions relevant to education and training
2.57
In general, the Convention does not apply to work done by children and young persons in schools for general, vocational, or technical education or in other training institutions, for instance, apprenticeships.
2.58
If certain conditions are met, the Convention does not apply to work done by persons at least 14 years of age where the work is an integral part of a legitimate education or training program.
Exemption for artistic performances
2.59
Providing appropriate consultations have been undertaken with any organisations of employers and workers concerned, an exemption to the prohibition of employment or work may be granted by permit in individual cases for participation in artistic performances. Permits are to limit the number of hours, and prescribe the conditions in which the employment or work is allowed.
Provisions for Members with ‘insufficiently developed’ institutions
2.60
Members with insufficiently developed economies and educational facilities may specify a minimum age for employment or work of 14 years, providing certain conditions are met.
2.61
Members with insufficiently developed economies and administrative facilities may initially limit the scope of application of the Convention, providing certain conditions are met. However, at a minimum, the provisions of the Convention are to be applicable to: mining and quarrying; manufacturing; construction; electricity, gas and water; sanitary services; transport, storage and communication; and plantations and other agricultural undertakings mainly producing for commercial purposes, but excluding family and small-scale holdings producing for local consumption and not regularly employing hired workers.
Enforcement
2.62
Article 9 requires that ‘all necessary measures’ be taken to ensure the effective enforcement of the provisions of the Convention, including appropriate penalties. This also includes a requirement for all employers to keep a register of all persons employed or working who are less than 18 years of age.
Interaction with other conventions
2.63
Article 10 deals with the interaction of the Convention with other ILO minimum age conventions, including revisions and denunciations of previous ILO conventions superseded by the Convention.
Denunciations relevant to Australia
2.64
According to the NIA, Australia’s ratification of the Convention would result in the automatic denunciation of the following previously ratified conventions:
Convention concerning the Age for Admission of Children to Employment in Agriculture
Convention concerning the Minimum Age for Admission to Employment as Fishermen
Convention concerning the Minimum Age for Admission to Employment Underground in Mines.
Entry into force
2.65
The Convention would enter into force 12 months after the date ratification is registered with the Director-General of the ILO.
Denunciation
2.66
In general, a Member is bound to the Convention for 10 years, and if it does not exercise the right of denunciation within the following year, is bound for another period of 10 years, and so on.
2.67
The 10-year period is determined by the date of the Convention coming into force (not by a Member’s ratification date). According to the NIA, the next opportunity to denounce the Convention would be in the 12 months following 19 June 2026.
Implementation
2.68
According to the NIA, implementation of the Convention falls primarily within the jurisdiction of the states and territories. There is no Commonwealth legislation that prescribes a minimum age for admission to employment or work in Australia.
2.69
The NIA stated that between 2018 and 2020, states and territories had advised the Australian Government their laws complied with the Convention.
2.70
Notwithstanding compliance issues discussed above, DEWR was of the view:
… in most fundamental respects, the combination of law and practice at the Commonwealth, State and Territory levels achieve broad overall compliance with Australia’s obligations under the Convention.
Consultation
2.71
The NIA suggested the Australian Government has had extensive consultations with states and territories since 1972. Most recently, the Convention was considered at the annual meeting of Commonwealth, state and territory officials responsible for ILO matters in April 2022. States and territories have also been advised of the Convention through the Standing Committee on Treaties’ Schedule of Treaty Action, most recently ahead of the 18 November 2021 meeting.
2.72
The Convention has also been discussed at meetings of the International Labour Affairs Committee of the National Workplace Relations Consultative Council on a periodic basis since 1973. This committee comprises DEWR, the ACTU, and the Australian Chamber of Commerce and Industry.
Committee view
2.73
The Convention provides a flexible global framework for the abolition of child labour that allows Members with varied legal systems to ensure their compliance.
2.74
Ratification would mean Australia would join 175 other countries around the world who have committed to eliminating child labour through the Convention. Given approximately 30 per cent of child labour globally occurs in the Asia-Pacific region, this would support Australia’s efforts to promote strong measures to prevent and eliminate child labour.
2.75
The Committee acknowledges Australia’s federal structure means legislation governing child work and employment is within the jurisdiction of the states and territories, and each has taken its own approach to ensuring children complete compulsory schooling prior to engaging in work or employment.
2.76
While the Committee was told existing legislation in the states and territories means Australia is in compliance with the obligations in the Convention, the NIA highlighted some areas of contention that would require ongoing coordination between the Australian Government and the states and territories.
2.77
The Committee examined the article 4 exemption, under which the Australian Government is proposing to exclude from the application of the Convention limited categories where children under 13 years may undertake light work. The Committee heard this would not allow for child labour to occur in Australia, but would allow for the continuance of existing and legislated practices that comport with generally held community values and norms, and which do not harm the education of children.
2.78
While there is not a single prohibition against child labour in Australia, the Committee agrees that in effect it is prevented through the combination of education, employment, and workplace health and safety legislation.
2.79
Should the Australian Government proceed with ratification, the Committee looks forward to receiving a copy of Australia’s first report on its compliance with the Convention.
2.80
The Committee is of the view ratification of the Convention would be in the national interest and recommends binding treaty action be taken.
2.81
The Committee supports the International Labour Organization Convention No. 138: Convention concerning Minimum Age for Admission to Employment and recommends that binding treaty action be taken.