DCI – ILO Convention 138 3

Defence for Children International

ILO Convention 138


Definition of a National Policy
Specification of a Minimum Age
Provisional Exceptions

Individual Exceptions
Hazardous Emplyment

of employment
Implementation Measures

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

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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

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National policy for child labour must establish a criteria for

determining what is socially —and legally—allowed 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,

paragraph 3)

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.

Provisional Exceptions

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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).

Permanent Exceptions

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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

workers concerned;

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).

Individual Exceptions

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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).

Hazardous Employment

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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

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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


fair remuneration and its

protection bearing in mind the principle of equal pay for equal work;

the strict limitation of the hours

spent at work, prohibition of overtime, so as to allow enough time for education

and training, for rest during the day and leisure activities;

the granting, without possibility

of exception (save in genuine emergency) of a minimum consecutive period of 12

hours’ night rest;

the granting of an annual holiday

with pay of at least four weeks, and in any case, not shorter than that granted

to adults;

coverage by social security

schemes, whatever the conditions of employment or work may be;

the maintenance of satisfactory

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”.

Implementation Measures

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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.

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