NEPAL: Children's rights in International Labour Organisation reports

Summary: This report summarises individual observations and direct requests issued by the ILO Committee of Experts related to child labour conventions. To view the full reports, go to the NORMLEX database (http://www.ilo.org/dyn/normlex/en/f?p=1000:1:0::NO:::) and click on ‘display all documents related to a specific country’.

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• CEACR: Direct request concerning the Minimum Age Convention, 1973 (No. 138)
• CEACR: Direct Request concerning the Worst Forms of Child Labour Convention, 1999 (No. 182)

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CEACR: Direct Request concerning the Minimum Age Convention, 1973 (No. 138) Nepal (Ratified 1997)
Published 2012

Article 2(1) of the Convention. Scope of application.

The ILO Committee had previously noted that the Child Labour Act which prohibits the employment of children below 14 years as labourers (section 3(1)), does not define the terms “employment” and “labourer”. It had noted the Government’s indication that the Act does not adequately cover the informal sector. The Committee had also noted that the Government had been carrying out discussions with the social partners for the improvement of this Act, in particular to apply the minimum-age provisions to the informal sector and that a study was commissioned by the ILO–IPEC Time-Bound Programme (TBP)to identify the gaps in the Act and make it compatible with the Convention. The Committee had further noted the Government’s information that the Labour and Employment Policy of 2005 which spells out the policy of eliminating child labour would adopt the practice of classifying the general, hazardous and worst forms of child labour both in the formal and informal sectors and eliminate them. Noting the Government’s statement that the majority of children were employed in the informal sector, the Committee had requested the Government to continue its efforts to enforce the minimum age provisions in the informal sector.

The Committee noted the Government’s indication that though the labour inspections show a negligible incidence of child labour in the formal sector, it is more likely to be prevalent in the informal sector. It also noted the Government’s information that it is very difficult to enforce the provisions of this Convention in the informal sector due to limited infrastructure and financial resources. In view of the information referred to above concerning the situation of children working in the informal economy, the Committee expresses the firm hope that measures will be adopted very soon under the Labour and Employment Policy of 2005 with a view to abolishing child labour both in the formal and the informal sectors. It requests the Government to provide information on any progress made in this regard. The Committee also requests the Government, in the context of adopting measures to strengthen the capacity of labour inspectors, to envisage the possibility of adapting their functions so that they can secure the protection set out in the Convention for the children working in the informal sector. It requests the Government to provide information on this subject. The Committee finally requests the Government to provide information on any progress made following its discussions with the social partners for the improvement of the Child Labour Act, in particular the application of the minimum age provisions in the informal sector.

Article 3(1) and (2). Minimum age for admission to hazardous work and determination of types of hazardous work.

The Committee had previously noted that section 3(2) of the Child Labour Act, in conjunction with section 2(a) of the same Act, prohibits the employment of persons under 16 years of age in any risky job or enterprise listed in the schedule, and that section 43(2) of the Labour Rules, 1993, also prohibits the employment of such persons on dangerous machines and in operations which are hazardous to their health. It had also noted the Government’s statement that consultations are ongoing with employers’ and workers’ organisations to identify specific tasks or jobs that are truly hazardous to young persons and that once these had been identified, it would be easier and practical to raise the age to 18 years. The Committee further noted the Government’s information that the Child Labour (Prohibition and Regulation) Act, 2000, which entered into force in 2004 enlists different jobs, occupations and work environments that are hazardous and therefore prohibited to children below 16 years. The Committee accordingly had observed that by virtue of the provisions of relatively new legislation (Child Labour (Prohibition and Regulation) Act, 2000), the minimum age for admission to hazardous work is 16 years.

Noting the Government’s reference to the Labour Act of 1992 and Labour Rules of 1993, the Committee observed that even under the above Acts, no higher minimum age has been fixed for work which is likely to jeopardise the health, safety or morals of young people, other than night work. The Committee therefore once again reminded the Government that Article 3(1) of the Convention provides that the minimum age for admission to any type of employment or work, which by its nature or the circumstances in which it is carried out, is likely to jeopardise the health, safety or morals of young persons shall not be less than 18 years. Therefore, the Committee once again requests the Government to take the necessary measures to ensure that no person under 18 years of age is authorised to perform types of hazardous work in accordance with Article 3(1) of the Convention. The Committee also requests the Government to take the necessary measures to include in the national legislation provisions determining the types of hazardous work to be prohibited to persons below 18 years of age in accordance with Article 3(2) of the Convention. It requests the Government to provide information on the progress made in this regard.

Article 3(3). Admission to types of hazardous work from the age of 16 years.

In its previous comments, the Committee had reminded the Government that Article 3(3) of the Convention authorises, under strict conditions respecting protection and prior training, the employment or work of young persons between the ages of 16 and 18 years. It also recalled that this provision of the Convention constitutes a limited exception to the general rule of the prohibition on young persons under 18 years of age from performing hazardous types of work, and does not constitute an overall authorisation to undertake hazardous work from the age of 16 years. Noting the absence of information in the Government’s report, the Committee once again requests the Government to take the necessary measures to ensure that the performance of hazardous types of work by young persons between 16 and 18 years of age is only authorised in conformity with the provisions of Article 3(3) of the Convention.

Article 8. Artistic performances.

The ILO Committee had previously noted that section 6 of the Child Labour Act stipulates that “an educational institution or any other lawfully established institution for the protection of the rights and interests of children, unlike any other establishment, does not require to obtain approval from the labour office for engaging children in activities or cultural programmes organised in the larger interests of children”. It had noted the Government’s information that such performances are of a short duration and are carried out by agencies which are sensitive to the rights of children. It further noted the Government’s indication that so far, no effort has been made to issue permits on a case-by-case basis and to regulate working hours and conditions, but that this would be discussed with workers’ and employers’ organisations in future. The Committee noted that the Government’s report does not contain any information on this point. The Committee therefore once again recalled that Article 8 of the Convention allows exceptions to the specified minimum age of admission to employment or work for such purposes as participation in artistic performances only by permits granted by the competent authority in individual cases. The Committee once again requests the Government to take the necessary steps to ensure that children under 14 years of age who participate in artistic performances have the protection laid down by this provision of the Convention.

Part V of the report form. Application of the Convention in practice.

The Committee further noted the Government’s information that within the framework of the ILO–IPEC project entitled “Sustainable Elimination of Child (Bonded) Labour in Nepal, Phase II”, 5,554 children (2,887 girls and 2,667 boys) were prevented from bonded labour and provided educational support, 1,232 children (798 girls and 434 boys) were withdrawn from bonded labour and provided informal education, together with income generating support to these families up to May 2009. The Committee also noted that according to the data collected by the Central Children Welfare Committee (CCWC) under the Ministry of Women, Children and Social Welfare, a total of 22,981 cases of worst forms of child labour were registered from 59 districts. The Committee requests the Government to continue providing information on the manner in which the Convention is applied, including, for example, statistical data on the employment of children and young persons, extracts from the reports of inspection services and information on the number and nature of violations detected and penalties applied involving children and young persons. The Government also provided further statistics on educational measures provided for children affected by child labour.

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CEACR: Direct Request concerning the Worst Forms of Child Labour Convention, 1999 (No. 182) Nepal (Ratified 2002)
Published: 2012

Article 3 of the Convention. Worst forms of child labour. Clause (a). Compulsory recruitment of children for use in armed conflict.

In its previous comments, the ILO Committee had noted that the Royal Army New Recruitment Rules of 1962 fixes a minimum age of 18 years for recruitment in the army. It had noted the Government’s information that the Young Boys (Recruitment and Conditions of Service) Rules of 1971 which stipulates that a recruit may be 15 to 18 years of age shall be reviewed. The Committee had noted however that the forced recruitment of child combatants by Maoists was a matter of great concern to the Government and the public at large. The Committee had also noted the Government’s information that according to article 22(5) of the Interim Constitution of Nepal, 2007, children shall not be used in the army, police or in conflicts. Moreover, section 7.6.1 of the Comprehensive Peace Accord 2006 concluded between the Government of Nepal and the Communist Party of Nepal (Maoist) provided special protection for the rights of children including the prohibition on the use of children under the age of 18 years in the armed forces. The Committee had further noted that the UN Mission in Nepal (UNMIN) had started verifying and certifying the Maoist combatants in the Maoist cantonments established in the different parts of the country. It had finally noted the Government’s information that it had ratified the Optional Protocol to the United Nations Convention on the Rights of the Child on the Involvement of Children in Armed Conflict in 2006. Noting the absence of information in the Government’s report, the Committee once again expresses the hope that the Young Boys (Recruitment and Conditions of Service) Rules of 1971 will be amended as soon as possible to prohibit the forced recruitment of children under 18 years for use in armed conflict.

Clause (b). Use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances.

The ILO Committee had previously noted sections 4(3) and 4(4) of the Trafficking in Persons (Prohibition) Act, according to which forcing a woman by coercion or false promises to engage in prostitution and assisting, encouraging or facilitating any person into prostitution, constitute criminal offences. It had also noted sections 2(a) and 16(1) of the Children’s Act, 1992, which prohibit the use or involvement of children under 16 years in an “immoral profession”. It had noted, however, the Government’s indication that appropriate amendments would be made to the existing legislation, including the Children’s Act, after the elected constitutional assembly is formed and a fully fledged parliament starts to function. The Committee notes with interest that, according to section 4(1) read in conjunction with section 15(1) of the Human Trafficking and Transportation (Control) Act No. 5 of 2007, any person who uses, forces or involves another person in prostitution shall be punished. The Committee once again requests the Government to provide a definition of the term “immoral profession” as used in the Children’s Act. The Committee expresses the hope that the amendments to the Children’s Act will include a prohibition on the use, procuring or offering of both boys and girls under the age of 18 years for prostitution and for the production of pornography or for pornographic performances. It requests the Government to provide information on the progress made in this regard.

Clause (c). Use, procuring or offering of a child for illicit activities. Production and trafficking of drugs.

The ILO Committee had previously noted that according to sections 2(a) and 16(4) of the Children’s Act, it is prohibited to involve a child under 16 years in the sale, distribution or trafficking of alcohol, narcotics or other drugs. The Committee had also noted the Government’s statement that the Children’s Act would be amended in a way consistent with this Convention once a new and fully fledged parliament starts to function. Noting the absence of information in the Government’s report, the Committee once again expresses the firm hope that as part of the legislative amendments, measures will be taken to expressly prohibit the use, procuring or offering of a child under 18 years for illicit activities, particularly the production and distribution of drugs, in accordance with Article 3(c) of the Convention. It requests the Government to provide information on the progress made in this regard.

Use of a child for begging.

The ILO Committee had previously noted section 3 of the Begging (Prohibition) Act, 1962, which makes it an offence to ask or encourage a child under 16 years to beg in a street, junction or any other place. It had encouraged the Government to raise the age of a child from 16 to 18 years under that provision. The Committee had further noted the Government’s information that the Begging (Prohibition) Act of 1962 would be amended in a way consistent with this Convention once the new and fully fledged parliament starts to function. Noting the absence of information in the Government’s report, the Committee once again expresses the hope that appropriate amendments will be made to the Begging (Prohibition) Act of 1962.

Article 3, clause (d), and Article 4(1). Hazardous work and determination of types of hazardous work.

The ILO Committee had previously noted sections 2(a) and 3 of the Child Labour (Prohibition and Regulation) Act which prohibit the employment of children under 16 years in hazardous work or enterprises listed in the schedule. The Committee had noted the Government’s statement that the age of a “child” as mentioned in the above legislation needs to be raised to 18 years in order to make it consistent with the provisions of this Convention. It had also noted the Government’s information that appropriate amendments would be made to the national legislation after the elected constitutional assembly is formed and the fully fledged parliament starts to function. The Committee notes the Government’s reference to the Labour Act of 1992 and Labour Rules of 1993. However, the Committee observes that even under the above Acts, no higher minimum age has been fixed for work which is likely to jeopardise the health, safety or morals of young people, other than night work. The Committee requests the Government to take the necessary measures to ensure that no person under 18 years of age may be authorised to perform hazardous work, in conformity with Article 3(d) of the Convention. The Committee also requests the Government to take the necessary measures to include in the national legislation provisions determining the types of hazardous work to be prohibited to persons below 18 years of age in accordance with Article 3, paragraph 2, of the Convention. It requests the Government to provide information on the progress made in this regard.

Self-employed children.

The ILO Committee had previously noted that self employed workers do not benefit from the protection laid down in the Child Labour (Prohibition and Regulation) Act. It had noted the Government’s statement that the Ministry of Labour and Transport Management and the Ministry of Labour and Employment Promotion organised five workshops as a means to strengthen the capacity of labour officers and factory inspectors to consider seriously the worst forms of child labour, including in the informal sector. The Committee had also noted the Government’s information that with the support of ILO–IPEC, three national-level trade union federations are trying to extend their work against child labour in the informal sector by unionising the agricultural sector.

The Committee notes the Government’s statement in its report under Convention No. 138 that though the labour inspections shows a negligible incidence of child labour in the formal sector, it is more likely to be prevalent in the informal sector. It also notes the Government’s information that it is very difficult to enforce the provisions of this Convention in the informal sector due to limited infrastructure and financial resources. The Committee requests the Government to take immediate and effective measures to ensure that self employed children under 18 years of age are protected against the types of work, which by their nature or the circumstances in which they are carried out, are likely to harm their health, safety or morals. It also requests the Government, in the context of adopting measures to strengthen the capacity of labour inspectors, to envisage the possibility of adapting their functions so that they can secure the protection set out in the Convention for the children working in the informal sector.

Article 5. Monitoring mechanisms. Labour inspectorate.

The Committee notes the Government’s statement that according to the labour inspection report of 2007–08 and 2008–09, the figures of child labour in the organised sector is very rare. It also notes the information provided by the Government in its report under Convention No. 138 that according to the data collected by the Central Children Welfare Committee (CCWC) under the Ministry of Women, Children and Social Welfare, a total of 22,981 cases of worst forms of child labour were registered from 59 districts. The Committee requests the Government to continue providing information on the inspections carried out, including in the informal sector and on the number and nature of violations detected with regard to children under the age of 18 years. It also requests the Government to indicate how many of the cases registered by the CCWC related to trafficking in children, child sexual commercial exploitation, illicit activities and hazardous work.

Police.

The ILO Committee had previously noted the Government’s indication that the Nepalese police had established a separate cell to take care of the issues related to the trafficking of women, girls and boys at the central level and district levels (in 17 districts). The Committee once again requests the Government to provide information on the number of investigations carried out by the police and the findings with regard to the trafficking of children, and the number of violations detected under the new Trafficking (Control) Act, 2007.

Project for the elimination of bonded labour.

The Committee had previously noted the General Federation of Nepalese Trade Union’s (GEFONT) statement that although the kamaiya system was abolished by formal declaration of Parliament in 2000, child bonded labourers are still suffering. It had noted the Government’s information that the ILO–IPEC project entitled “Sustainable elimination of bonded labour” launched by the Government in 2000 targeted the rehabilitation of freed kamaiyas in the mid-western Terai districts. The Committee had further noted the Government’s statement that several studies carried out in different economic sectors indicated a total of 17,152 children working as bonded labourers.

The Committee notes with interest the information in the Government’s report that within the framework of the ILO–IPEC project entitled “Sustainable Elimination of Child (Bonded) Labour in Nepal, Phase II”, 5,554 children (2,887 girls and 2,667 boys) were prevented from bonded labour and provided educational support, 1,232 children (798 girls and 434 boys) were withdrawn from bonded labour and provided informal education, together with income generating support to these families up to May 2009. The Government also provided a statement including information on education and training measures for child domestic workers.