TECL II
Draft regulations on hazardous work and children
Two sets of regulations to protect children from exposure to hazardous work were drafted in 2006 as part of the Child Labour Programme of Action (CLPA). The versions presented below had been approved by the Employment Conditions Commission but were still to be considered by the Council on Occupational Health and Safety.
The regulations were drafted made in terms of the Basic Conditions of Employment Act of 1997 and the Occupational Health and Safety Act of 1993 respectively.
Basic Conditions of Employment Act regulations
The Basic Conditions of Employment Act not only prohibits children working as employees when they are under 15 years and for as long as they are subject to compulsory schooling, it also empowers the Minister of Labour to regulate the work done by children who are not covered by this prohibition.
The regulations are intended to:
- Place conditions on work that may legally be performed by children who are at least 15 years old and no longer compelled to attend school.
- Place conditions on work that may be performed by children younger than 15 years and still compelled to attend school. These children are not “employees” and therefore not subject to the work prohibition in the Basic Conditions of Employment Act. (The CLPA is proposing to introduce a wider definition of “employee” in order to protect more children.)
- Identify certain types of work that no child may be permitted to perform under any conditions.
The conditions prescribed for employers of children relate to:
- Safeguarding working children’s access to nutrition, health care and education.
- Controlling the circumstances in which children may work away from their parents.
- Setting maximum daily and weekly hours of work.
- Prohibiting piece work and task work, where the child is paid by volume of work rather than time worked.
- Prohibiting night time work, with some specific exceptions.
When identifying hazardous forms of work that are prohibited for children, the regulations propose two categories.
- Prohibited work.
- Worst forms of child labour.
While both categories of work present clear risks to the child’s safety and wellbeing, the risks in the second category are more extreme. Each category comprises a long list of activities. Most forms of work involve physical risk, but some involve social, moral and psychological hazards.
The regulations set out procedures for investigation and prosecution. Anyone who employs a child in breach of the regulations may be fined or imprisoned for a maximum period of three years.
Where the offence involves exposing a child to one of the worst forms of child labour, the court is directed to consider this when determining sentence – in light of the fact that South Africa has ratified the Worst Forms of Child Labour Convention.
Occupational Health and Safety Act regulations
These draft regulations aim to impose conditions on work that children may lawfully do in order to protect their health and safety. The regulations highlight the special vulnerability of children to workplace injury and illness because they are physically immature and less able to judge risk.
The regulations hold every employer of a child responsible for undertaking “a risk assessment process” to establish the risk the work poses to the child and to take measures to remove or reduce any hazard or potential hazard.
Employers are required to take account of the fact that children are more at risk than adults in the face of a variety of workplace hazards.
Without reducing the duty of the employer to assess the individual work situation, the regulations propose standard approaches in relation to the following:
- Respiratory hazards.
- Work undertaken more than 2 metres above ground.
- Lifting of heavy weights.
- Work in a cold environment.
- Work in a hot environment.
- Work in a noisy environment.
- Use of power tools and cutting or grinding equipment.
In most cases child work in these conditions is prohibited unless specified precautions are taken.
Failure to comply with the regulations constitutes an offence. Penalties include the option of a jail term of up to 12 months. If the offence continues, both the fine and the prison sentence increase for each day for which the offence is sustained.
If the offence committed is also a worst form of child labour, as defined in the regulations to the Basic Conditions of Employment Act, the court is required to take this into account in determining sentence.
Full text of both regulations