Defence for Children International
ILO Convention 138
STANDARD SETTING ACTIVITY OF THE ILO
Definition of a National Policy
International conventions adopted before 1973 referred specifically to
industrial employment (Conventions 5 and 59), commercial (Conventions 33 and
60), or underground work (Convention 123) and work in the agricultural sector,
without specifying whether or not it was paid or unpaid (Convention 10). These
Conventions were aimed at the adoption and application of legislation banning
the labour of children under a certain age.
Convention 138 covers all work or employment, paid or unpaid, and has a
more ambitious objective than the previous Conventions it revises. It not only
establishes a minimum age for employment therefore prohibiting paid work under a
certain age; it also defines and applies
policy aimed at the elimination of child labour and at the progressive
increase of the minimum age for their employment. It must be recalled that the
Convention sets minimum standards. It is always possible to go beyond this
threshold and adopt more favourable measures for children.
What are the minimum obligations of States that ratify Convention 138 ?
Definition of a National Policy
The central commitment of the Convention resides in the pursuit of a
national policy designed 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.”(Art. 1) States have the right to chose the means which will be
used to attain this objective. Nevertheless, it is necessary to stress that a
child labour policy is meaningful only if it is co-ordinated with the entire set
of policies relating to children (education, child health, support for families
etc.) .In particular, the minimum age for employment must correspond to the age
of completion of compulsory schooling (Art. 2, paragraph 3).
Furthermore, a policy aimed at the effective abolition of child labour
must be co-ordinated with employment policy, incomes policy and in particular
with those measures taken for the reduction of poverty and the risks of
exclusion, as well as social security measures. Recommendation 146 which
accompanies the Convention specifies the possible policy content regarding child
labour (paragraphs 1-5). The recommendation particularly underlies for “high
priority” to be given to a set of measures covering a wide field and on the
essential co-ordination of measures to be taken for the abolition of child
labour, as well as measures in education, health or employment.
Specification of a Minimum Age
National policy for child labour must establish a criteria for
determining what is socially and legallyallowed and what is not. The
States that ratify the Convention must specify a minimum age under which no one
under it will be admitted to employment or work in any occupation, except in
those exceptions provided for in the Convention (Art.2, paragraph 1).
This minimum age is set at the age of completion of compulsory schooling
(if it 15 years or more) and in any case cannot be less than 15 years (Art.2,
This principle notwithstanding, there are many exceptions. Some are
provisional and should facilitate the ratification by the greatest number of
countries possible, however others can be permanent, in order to afford
governments more flexibility in the application of the Convention.
One exception concerns those countries “whose economies and
educational facilities are insufficiently developed” who may initially
specify a minimum age of 14 years after consultation with the organisations of
employers and workers concerned (Art. 2, paragraph 4).
Another exception is for those countries “whose economy and
administrative facilities are insufficiently developed” that can initially
limit the scope of the application of the Convention to seven sectors of
activity as a minimum: mining and quarrying; manufacturing; construction;
electricity, gas and water; sanitary services; transport, storage and
communication; and plantations and other agricultural undertaking mainly
producing for commercial purposes, but “excluding family and small-scale
holdings producing for local consumption and not regularly employing hired
workers.” (Art. 5, paragraphs 1 and 3).
Following consultations with employers and workers organisations, it is
possible not to apply the Convention to “limited categories of employment
or work” when its application to these categories would entail”
special and substantial problems” (Art. 4, paragraph 1). These special
categories have not been defined. The example of housework done outside the
family sphere was given for this category during the preparatory work. It was
argued that important practical difficulties existed, in particular the
supervision of this type of employment, for the labour inspectorate was not able
or did not have the power to inspect the home of an employer of domestic help.
Nevertheless, in certain countries, it is difficult to consider this
category of children, at times quite young, that work as servants as a “limited”
category. The competent organs of the ILO have also agreed that family
enterprises, where only the members of the entrepreneur’s family work may be
excluded in accordance with this provision.
On the other hand, the same provision cannot be used to exclude the
entire informal sector.
In order for the other Member states that have ratified the Convention
to be aware of the scope of the exceptions, a periodic report must be submitted
to the ILO indicating the reasons for their eventual preservation (Art. 2,
paragraph 5, Art. 4, paragraph 2; Art. 5, paragraph 4).
Work undertaken in the framework of training (Art. 6) particularly in
the framework of a general educational or vocational institution can be excluded
from the application of the Convention. The work that the apprentice is to carry
out in the enterprise does not fall within the scope of the Convention as long
a) it is carried out by persons at least 14 years of age;
b) it is done in accordance with conditions prescribed by the
competent authority after consultation with the organisations of employers and
c) it is an integral part of a previously approved programme.
Finally, there is an exception for light work (Art. 7). International
instruments do not define “light work” but there are certain criteria
that allow for the description of this type of work. It is one:
a) which is not likely to be harmful to their health or
b) which is not such as to prejudice their attendance at school,
their participation in vocational orientation or training programmes or their
capacity to benefit from the instruction received;
c)whose duration and conditions of employment have been
determined by the competent authorities.
If the concept of light work is applied, then competent authorities
a) determine those activities in which employment may be
permitted for persons aged 13 to 15, in accordance with the criteria used by the
b) prescribe the duration (in hours) and the conditions of
employment (Art. 7, paragraph 3). When a State has decided on a minimum age of
14 (Art. 2, paragraph 4), the minimum age for admission in employment on light
work can be set at age 12
(Art. 7 paragraph 4).
For some activities that require the presence of a child (shows
requiring children on stage, advertising activities, etc.) individual
authorisations may be granted after consultations with employers and workers
organisations (Art. 8, paragraph 1). These permits shall limit the duration in
number of hours and prescribe the conditions in which employment or work is
allowed (Art. 8, paragraph 2).
The Convention aims at protecting children and adolescents under 18
years of age from work which “by its nature or the circumstances in which
it is carried out is likely to jeopardise” their health, safety or morals
(Art. 3, paragraph 1). The government shall establish a list of these types of
employment or work after consultation with employers and workers organisations.
An exception has been provided for: laws may allow for the employment as
from the age of 16 as long as a) the health, safety and morals of the
young persons are fully protected and b) that they have received
adequate specific instruction or training in the relevant branch of activity
(Art. 3, paragraph 3). The list of the types of employment or dangerous work
should be periodically revised to take into account the evolution of science and
Finally, international labour conventions on night work of children and
young persons (Conventions 6, 79 and 90) enshrine the principle of the
prohibition of night work for persons under the age of 18. Nevertheless, a
certain number of limited exceptions are allowed.
Conditions of employment
With the exception of provisions related to “light work”, the
Convention does not have any particular provisions related to the conditions of
employment of children and adolescents. It is worth recalling that most
international labour conventions are applicable without distinctions based on
age: they guarantee protection to those children who are earning salaries the
same protection afforded to adult workers regardless of gender.
Recommendation 146 enumerates a list of topics that deserve particular
protection bearing in mind the principle of equal pay for equal work;
spent at work, prohibition of overtime, so as to allow enough time for education
and training, for rest during the day and leisure activities;
of exception (save in genuine emergency) of a minimum consecutive period of 12
hours’ night rest;
with pay of at least four weeks, and in any case, not shorter than that granted
schemes, whatever the conditions of employment or work may be;
standards of safety and health, including appropriate instruction and
Medical examinations of children and adolescents are not included in the
Convention. International labour conventions 77, 78 and 124 provide for a
thorough medical examinations of working children and adolescents to determine
their aptitude for employment, which is done before the actual hiring takes
place, and follow up medical exams in the firm. Conventions specify that these
exams “shall not entail any cost either for the child or his parents”.
There are three implementation measures (Art. 9):
a) adoption of all appropriate measures (including penalties)
to ensure the effective enforcement of the Convention;
b) the determination of the person responsible for the
compliance with the Convention (employers, parents, legal guardians, etc.); and
c) the keeping of registers by the employer containing the
names and ages or dates or birth of persons whom he employs who are less than 18
years of age.
Is Convention 138 an appropriate instrument to meet the challenge of
child labour both in industrialised as well as developing countries? Many of its
provisions, as well as of those of international labour conventions on the
prohibition of night work or on medical examinations of children and young
persons specifically and exclusively deal with paid labour. In this respect they
play a central role, for paid labour is and undoubtedly will still remain a
dominant model of modern times.
Can it play a similar role for unpaid activities, for the informal
sector or for agricultural activities at the borderline of subsistence ? It
seems it can. By establishing an obligation of defining and enforcing a national
policy aimed at the prohibition of child labour, the Convention induces all
interested parties including NGOs to take a global approach to the
problem. Measures to be taken in differing situations (paid labour, work in the
informal sector, work in the agricultural sector, work as domestic help etc.)
are not the same; they should nevertheless be co-ordinated even more so for
often effective instruments in the fight against child labour are the same
(generalisation of free and compulsory education particularly in the rural areas
and in poor urban neighbourhoods; incomes policies; social protection measures
etc.) Nevertheless, the effectiveness of the Convention depends on its
ratification by States. Much remains to be done in this sphere.