PROTECTION OF UNDERAGED WORKERS IN SINGAPORE: DOMESTIC AND INTERNATIONAL REGULATION
| Citation | (2005) 17 SAcLJ 668 |
| Published date | 01 December 2005 |
| Author | CHAN Wing Cheong LLM (Cornell), MA (Oxford); Associate Professor, Faculty of Law, National University of Singapore. |
| Date | 01 December 2005 |
Singapore has recently made a commitment to ratify the Convention concerning Minimum Age for Admission to Employment (Convention No 138). This article reviews the obligations required under this complicated convention, the inter-relationship between it and the other conventions and recommendations of the International Labour Organization, and assesses whether Singapore’s laws meet these obligations. It concludes by making some proposals for changes to be made to Singapore’s laws in order to comply with the requirements of the convention.
1 Until Singapore’s employment law was amended in 2004,1 children as young as 12 years of age could be employed doing “light work” in a “non-industrial undertaking”2 and those as young as 14 years of age could be employed in an “industrial undertaking” unless there was a specific prohibition in relation to that undertaking prescribed by the Minister of Manpower.3 Although no complaints had been received by the Ministry of Manpower for more than ten years on the employment of children under 12 years of age, and that of the 1,200 young persons
between 14 and 16 years of age working in industrial undertakings, “almost all” were working part-time in fast food restaurants,4 concerns have been repeatedly raised in Parliament that our employment law is contrary to the value which we place on children and our obligations as a State Party to the International Labour Organization (“ILO”).5 As a State Party to the UN Convention on the Rights of the Child,6 Singapore is also under an obligation to have “regard to the relevant provisions of other international instruments” in protecting children from economic exploitation and from work that threatens their health, education and development.7 In particular, Singapore is required to:8
(a) provide for a minimum age or minimum ages for admission to employment;
(b) provide for appropriate regulation of the hours and conditions of employment;
(c) provide for appropriate penalties or other sanctions to ensure the effective enforcement of [this Article].
2 Unfortunately, the true number of employed persons under 15 years of age in Singapore is not known as the labour statistics collected only cover those who are 15 years or older.9
3 With the amendment to the Employment Act in 2004, Singapore has signalled her intention to ratify ILO’s Minimum Age Convention 197310 (Convention No 138) in due course.11 However, the provisions contained in Convention No 138 are by no means easy to understand. Further complications arise in discerning the inter-relationship between it and the other conventions and recommendations promulgated by the ILO. It is not the purpose of this article to examine whether Convention No 138 is or is not a suitable target for ratification by Singapore.12 This article aims instead to assist readers to comprehend the intricacies of this Convention and to assess Singapore’s laws relating to children and young
persons who work in the light of her commitment to ratify the Convention.
4 This article begins by noting the provisions and structure of Convention No 138, and the supervisory mechanisms under the ILO to ensure compliance, before moving on to review the extent to which Singapore’s law conforms to this Convention. While gradual changes have indeed been made over the years to improve the protection given to underaged workers, it is argued that further reforms are needed in order to secure full compliance with Convention No 138.
5 By its preamble, Convention No 138 aims to establish a general standard for the minimum age for admission to employment to replace the existing ILO conventions which apply to certain sectors of the economy only.13 The obligation placed on parties by Art 1 of Convention No 138 is an onerous one:14
Each Member for which this Convention is in force undertakes to pursue 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.
6 The most important provision in Convention No 138 is Art 2 which specifies that State Parties must declare “a minimum age for admission to employment or work within its territory and on means of transport registered in its territory”15 which “shall not be less than the age
of completion of compulsory schooling and, in any case, shall not be less than 15 years”.16
7 Three points may be noted. First, the concept of child “labour” is itself ambiguous. In a 1996 study by the Organisation for Economic Co-operation and Development, it was said that:17
[P]art-time work is a fact of life for many children and is not necessarily exploitative or detrimental to the child’s development. Sometimes it can help young people acquire skills and build confidence. In combating exploitative child labour, it is necessary, therefore, to consider carefully its various forms, making a distinction between work and exploitation, and taking due account of the developmental and cultural contexts. …
According to the criteria developed by UNICEF in 1986, child exploitation is characterised by children who work too young, too long hours, for too little pay, in hazardous conditions or under slave-like arrangements. UNICEF adds that exploitation also occurs when children’s work entails too much responsibility; hampers their access to education; is detrimental to their full social and psychological development; or undermines their dignity or self esteem.
8 Other than the obvious forms of exploitative child labour such as their involvement in bonded labour, prostitution and drug trafficking (all of which are well controlled within Singapore), the line between work and exploitation is not an easy one to draw at all. If “work” or “labour” is read to encompass all forms of significant economic activity, it could include even those who work, paid or unpaid, in family enterprises and those who perform domestic work in the home.18 Hence, it could cover
even a child who is asked to set the table or clean his room!19 This follows from the fact that the earlier Minimum Age (Non-Industrial Employment) Convention 193220 (“Convention No 33”), Art 1(3)(b), contains a “domestic work” exclusion and Convention No 138 does not.
9 It has been suggested that it is because of the extent of regulation that is required by Convention No 138 that developed countries have either failed to ratify it, or are not in compliance with it.21 On the other hand, the use of the phrase “employment or work” in Art 2 of the Convention is intentionally wide. The latter phrase definitely covers those who work as independent agents under a contract for services as well as those who work under contracts of employment.22 It is what else that falls within its purview that is a source of uncertainty.
10 It is submitted that a better — and more limited — interpretation to the concept of child “labour” to be prohibited stems from the strong link drawn between compulsory education and the admission of underaged persons to employment or work in Art 2 of the Convention. This is emphasised in Art 7 of the Convention where “light work” done by persons between 13 and 15 years of age, and the employment or work of persons who are at least 15 years of age but have not yet completed their compulsory schooling, must not, inter alia, “prejudice their attendance at school … or their capacity to benefit from the instruction received”. Paragraph 4 of Recommendation No 14623 accompanying the Convention also states that:
Full-time attendance at school or participation in approved vocational orientation or training programmes should be required and effectively ensured up to an age at least equal to that specified for admission to
employment in accordance with Article 2 of the Minimum Age Convention, 1973.
11 The link drawn between education and the minimum age for admission to employment demonstrates that the evil targeted at is not children who assist in domestic chores or in family businesses after school hours but those who perform these tasks full time without attending school or perform them to such an extent that their school attendance is adversely affected. In this way, a more meaningful line can be drawn between the acceptable and unacceptable types of work involving underaged workers in the more developed countries.
12 Second, the standards laid down by the Convention are not meant to be static in nature, but are to be progressively improved on until the objectives of the Convention are attained. (This in turn may never be achieved since Art 1 of the Convention requires the progressive raising of the minimum age for admission to employment or work to a level consistent with the “fullest physical and mental development of young persons”.) However, this is not to say that there are no minimum standards to be met in order to comply with the Convention.24 These standards will be examined in detail below. The simultaneous use of minimum standards with promotional language in the Convention is meant to provide flexibility to developing States in meeting the requirements of the Convention while allowing for progressive raising of standards at the same time.25
13 Third, an issue that could arise is whether it is sufficient for a State to legislate for compulsory education without also legislating for a minimum age of 15 years for admission to employment. The response of the ILO is that it would not be sufficient to rely solely on compulsory education laws alone.26 There must also be restrictions on employment or
work outside of school hours and during school holidays.27 In the case of Singapore, for example, although the Compulsory Education Act28 imposes compulsory school attendance for children until the age of 15 years, this is only for the purposes of...
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