The Law and Child Labour: Minimum Age Acts

Interview with Yamila Rodríguez

Yamila Rodríguez is a lawyer from Buenos Aires, Argentina. She has a strong commitment to human rights, especially children rights, with several publications on the subject.

She is currently a PhD scholar at the University of Buenos Aires where she is conducting research about human rights, children rights, autonomy and participation.

Welcome back Yamila! Following our first discussion, today we are addressing child labour and Minimum Age Acts further, and if child protection laws really protect children from child labour.

As you mentioned in our previous interview, international and national law vary the perception of a child making it difficult to address the laws around child labour. At the moment, HACE’s projects are based in Bangladesh, India, Nigeria and Tanzania.

Can you tell us how international laws on minimum age could conflict with national minimum age laws in one of the four countries we work in?

Thank you for having me again!  Let’s take India as an example of how different minimum ages interact. You may remember from our previous interview that ILO Convention No. 138 sets the minimum age for employment at 15. However, in India, according to the Child Labour (Prohibition and Regulation) ACT, OF 1986, children are allowed to work in non-hazardous occupations when they are 14 years old. This is an exception contemplated by the Convention itself: according to Article 2, States whose economy and educational facilities are insufficiently developed may initially specify a minimum age of 14 years. 

It has to be highlighted that the ILO Convention mentioned above, dating from 1973, was only ratified by India in 2017. Regarding hazardous work, The Child Labour (Prohibition and Regulation) Amendment ACT OF 2016 prohibits children under 18 to perform any dangerous occupation, which means that, in that matter, India is in compliance with ILO Convention No. 182. 

Moreover, it is interesting to point out that in India, The Right of Children to Free and Compulsory Education ACT, 2009, establishes that education shall be free and compulsory for children between the age of 6 to 14. So, in order to raise the minimum age for admission to any type of employment or work, provisions should be made to increase the number of years of compulsory education in tandem. Ages for compulsory education and employment should coincide so that children who finish school are allowed to find a legal job. In child labour, as in other important fields of law, it is important to be aware of these possible inconsistencies. 

To what extent is child labour “illegal”? Could you give some detailed examples?

Regarding Child Labour Acts, most states have adopted a double approach that contemplates  prohibition of child labour in certain specific sectors and activities, and its regulation elsewhere. For example, in almost every state, it is absolutely prohibited to employ children in hazardous work; however, regarding non-hazardous work, it is prohibited for children under 15 and regulated for the age group of 15-18. Regulation, in this case, means that there is a strong public intervention in the characteristics of the terms of employment and the working conditions, which is established in Child Labour Acts. 

In most countries, children below the age group of 12-14 are not permitted to work in any type of profession. Further, children above the age group of 12-14 and below 18 are allowed to work as long as no physical or moral damages are inflicted and often prior to submission of a primary school certificate. 

For example, in Tanzania, another country in which HACE works, children are allowed by law to work at 14years old. At this age, children may only be employed to do light work, which is not likely to be harmful to the child’s health and development. Also, employment of a child must not affect the child’s attendance at school, participation in vocational orientation or training programmes approved by the competent authority or the child’s capacity to benefit from the instruction received. 

These are the requirements for legally employing a person between 14 and 18. Legally employed, he/she is entitled to a minimum wage, annual leave, reduced hours, insurance, between other rights, that are supervised by the public authorities.

However, these legal provisions do not mean that children below 14 do not work at all. On the contrary, in Tanzania, despite the prohibition, one in four children aged 5 to13 years (25 %), almost 2.8 million in absolute terms, are in child labour. As a consequence, the undesirable effect of prohibitions in countries where child labour is a reality is that children are working in conditions that do not meet the standards and they are not receiving any kind of protection, or benefit because their activities are illegal. 

We have spoken previously about child labour laws being part of Human Rights Law. You mentioned that children rights are universal, indivisible, interdependent and interrelated. It seems to me that the language used in child labour laws seem to address children in a passive way and that they are a subject or object of the law.

What is your take on this? 

This is a very good question that relates to a very important issue: are children really considered as subjects of law?

In our previous conversation, we discussed the scope of children rights according to the Convention on the Rights of the Child. One of the fundamental principles of that convention is the right of the child to be heard which implies that children should participate in all decision- making processes that affect them. Of course, this right must be understood in accordance with the concept of “evolving capacities”, which means that children must be allowed to exercise their rights by themselves, and more freely, as they grow up and gain experience. 

In our field, this suggests that every public decision regarding child labour -from legislative processes to protective measures to take an individual child out of an exploitative situation- should contemplate children´s own views. The consultation should not be tokenistic and should imply active listening and interpreting by qualified adults. It also requires to take children´s views seriously.

“If children´s views are not taken into account in decisions that affect them -such as the age at which they are allowed to work or what kind of special treatment are they going to receive at work- they are not being considered as subjects: they are being treated as objects and in need of protection overlooking their freedom and participation rights and their abilities to make choices about their own lives.”

Yamila Rodríguez

Next on our interview series of The Law and Child Labour, with Yamila Rodríguez, we will follow up with Child labour, Humanitarian Law and Migration.