Children’s Amd Bill [B19B-2007]: Department of Labour response

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
5 September 2007
CHILDREN’S BILL: DEPARTMENT OF LABOUR RESPONSES
Acting Chairpersons: Mr M Masutha(ANC), Mr B Solo (ANC)

Documents handed out
Draft Report: Submissions Children’s Amendment Bill B19 2006
Children’s Amendment Bill (Department of Labour Briefing)

Audio recording of meeting

SUMMARY
The Department of Labour addressed the Committee  on its responses to public comments on the Children’s Amendment Bill. It had led the implementation of the Child Labour Programme of Action, an interdepartmental approach, also including organised labour and civil society, to deal with the issues of child labour. It looked at work that affected children negatively, employment of children until the end of the year in which they turned 15; and work by children aged 15-17; with allowance for the Children In Performing Arts (CIPA) determination. The international involvements of the Department were also set out. The Department had proposed amendments to the Bill, including definitional changes to terms ‘abuse’, child labour, exploitation, and worst forms of child labour. It also requested changes to sections 150, 105, 141, and 305. It was largely ready to implement the Bill. Further initiatives were explained and discussed. Members raised issues of children involved in gangsterism and the armed forces, the discrepancy between the Western-biased agreements and the situation of the African child, particularly in the rural setting, the question of permits for film work, and the differentiation between the type of tasks expected of a Western and traditional African child. Further concerns related to retirement fund beneficiaries, the position of the child heading the household, the UIF deductions for children under 17, the lack of oversight and the apparent lack of communication, especially on referral matters, between departments. Children working on farms, the lack of monitoring, and the practicalities of the situation were further matters that needed attention. The Committee recommended that the Department needed to study some of the research recently completed, to discuss the matter with other departments, specifically Provincial and Local Government, that would be addressing the committee. The South African Law Commission noted that the intention of the Bill was protection of children. Prosecuting labour offences was the Department of Labour’s responsibility.

MINUTES
Committee business
Mr M Masutha (ANC) acted as Chairperson for the first part of the meeting. He noted the outstanding issue of the legal opinion which was in circulation in writing. Mr Masutha had been in discussion with the Chair of Chairs to get an institutional response to the issue of public participation.

Mbizana Oversight Visit
After discussion on other matters which had commenced before announcement of the oversight visit to Mbizana, Members confirmed that this Committee would not be going to Mbizana. The Secretary would draft a letter to Chair of Chairs to inform him of the Committee’s decision.

Transcripts of Submissions & Report
Mr M Masutha requested information on the status of the transcripts of the submissions.

The Committee Secretary informed the Committee that the Supervisor had been contacted and that she was waiting for a response.

Mr Masutha suggested that the Committee formally forward a written request pointing out the need for this information to process the legislation.

Draft Report on Submissions
Ms Berenice Makani, Senior Researcher, Parliamentary Research Unit noted that the Unit had now correlated the submissions and had summarised the points raised under each clause. The main issues identified were Child Headed Households (Clause 136), Street Children and the lack of sufficient coverage of their needs, insufficient funding, and corporal punishment (Clause 139). On the last issue Ms Makane stated that most individual submissions resisted the banning of corporal punishment though some showed support for the clause. The issue of ‘may’ & ‘must’ in terms of funding and the duties of the provincial  MECs also were raised, with most expressing that ‘may’ should become a ‘must’..

Mr Masutha commended the Unit for their hard work and commitment .

Ms Bogopane-Zulu echoed his comments, stating that this was precisely the kind of outline the Committee had sought the previous week. She requested that the transcripts be available by the following Wednesday, and that a table of contents would be useful.

Mr Masutha reminded the Committee that there would still be another document, arising  from the transcripts of the submissions, which would need to be combined with the report that was now before the Committee.

Mr K Morwamoche also congratulated the researchers for the report. However, he thought it was important to consider issues concerning the disabled sector.

Mr Masutha urged the Committee to formulate a statement from the house, calling upon any interested parties to make sure the Department dealt adequately with these issues.

Mr B Solo took over as Chairperson from this point.

Ms Dudley intervened that perhaps somebody should be asking whether the institutional response was ready for this meeting.

Mr Masutha informed Members that the Secretary had this in hand at the moment. Communication issues had been one of the weaknesses of the Committee at this level. The Committee had also not communicating clearly to the Departments exactly what it was that the Committee would expect from them. He urged that Members and the Committee must give substantive guidance in advance to ensure that the correct letters were written to get the right response from the Departments.

Department of Labour (DoL): Briefing
Ms Bogopane-Zulu reminded the Committee that there was a small section on child labour in the Bill, and that the Department of Labour had been asked to comment on this, children in the entertainment industry and the response to relevant International Labour Organisation Conventions.
 
Mr Virgil Seafield, Manager: Employment Standards, Department of Labour, indicated that the three aspects of their presentation were a background on their comments on the Bill, proposed amendments and the state of readiness of the Department. The Department indicated that it led the implementation of the Child Labour Programme of Action (CLPA), which was an interdepartmental approach to deal with the issues of child labour. It was also a national effort by government, organised labour and civil society to address child labour. The department’s legislative mandate in dealing with child labour included the Basic Conditions Employment Act (BCEA) which dealt with child labour issues. This was divided into three categories. The first was work that affected children negatively, in whatever area; employment of children until the end of the year in which they turned 15; and work by children aged 15-17; with allowance for the Children In Performing Arts (CIPA) determination. The Department was involved in child labour also through its international obligations, which included the International Labour Organisation (ILO) Convention on Worst Forms of Child Labour; Minimum age Convention; Worst forms of Child Labour (WFCL) regulations and the Advisory Council for Occupational Health and Safety (ACOHS). The third form of involvement was through setting standards and monitoring to ensure the child should not perform work that might harm the physical, mental or social well being of child.

The Department indicated that it had proposed amendments to the Bill. These included definitional changes to terms ‘abuse’, child labour, exploitation, and worst forms of child labour. It also requested changes to Sections 150, 105, 141, and 305, to deal more thoroughly and consistently with child labour issues, to extend the statutory reporting duties so as to improve early intervention and protective services, and to protect children in child-headed households. The amendment of Section 305 was consequential on the addition of the new Section 141.

The Department indicated that it was largely ready to implement the bill. On the legislative side, it had in place already the international obligations through ratification of the Convention on the Worst Forms of Child Labour. It had also set clearly the provisions on child labour in the BCEA. It was in the process of developing regulations on the Worst Forms of Child Labour, which had been finalised by ACOHS, and would be available for comment soon. From an organisational viewpoint, the Department had in place and had trained the Inspectorate on the provisions of the BCEA. On the institutional side, it had existing policies in terms of the broad enforcement strategy for the BCEA and the Child Labour Specific Enforcement Strategy.

The Department informed the Committee about further proposed actions, such as completing the development of legislation on the Worst Forms of Child Labour  with ACOHS. A publication of regulations was being finalised. It was also engaged in training staff in terms of the reporting responsibilities under Clause 105 of the Bill. It was also looking at reviving the Child Labor Inter- sectoral Group (CLIG) structures such as the Social Justice Committees in the provinces. The question of children in armed forces could be dealt with under the Department of Defence legislation.

Discussion
Ms Bogopane-Zulu and Mrs I Direko (ANC) raised issues of children engaged in gangsterism.

Mr Masutha raised the issue of children involved in the armed forces, and also touched on issues of sexual exploitation of children.

The Department indicated that provisions dealing with children in armed forces could be placed in the defence legislation. The Committee requested if the Department had seen the defence legislation, as it was understood that children above 16 could be recruited into the armed forces. The Department of Labour unfortunately at present did not have this legislation to hand. 

The Department explained that gangsterism and sexual exploitation of children were dealt with through the Child Labour Programme of Action (CLPA) at government level. There was synergy between the South African Police Service (SAPS), Department of Social Development, and DoL to deal with this at any level. CLPA also sought to be a reporting tool to Cabinet at regular intervals, with respect to what government departments were doing. The CLPA had 135 steps divided between Departments identified by them.

Ms Bogopane-Zulu expressed concerns that most international conventions catered for the Western child and did not take into account the African child. She advised the Committee that in this process it must agree on what constituted the worst forms of exploitation and then determine what suited South Africa. She expressed that certain practices could not be labelled child labour, such as a child living in a deep rural area with its grandmother, who had the task of going to fetch water. It seemed that everything a rural child did in Africa was considered barbaric and exploitative.

The representatives from the Department expressed that the International law and African experience of Worst Form of Child Labour flowed out of the ratification of the Convention, and had been developed in the South African context clearly defined by South African standards. He referred to challenges of commercial sex exploitation and drug peddling and said that these were recent developments that needed to be reported to the UN and ILO.

The Department responded that children carrying water arose from government’s failure to deliver on its responsibility of water to all households so that children would not have to carry water. The CPLA was geared towards addressing these structural issues. He referred to research done by DoL, which indicated that where children collected water, they did so for approximately four or five hours per week. If, for example, there was a worry about children not going to school because they had to collect water, then CPLA sought to improve the mechanism for the structural issues to be resolved so the child could go to school and was not being doubly prejudiced.

Ms Bogopane Zulu further supported Mrs Direko in the need to look seriously at children involved in gangsterism, as it was a serious issue afflicting children in many settings in the country. She thought that children in the armed forces was not, by comparison, such a pressing issue for South Africa. Sexual abuse was another prevalent issue for children who might be exploited as prostitutes. She also raised the issue of CIPA permits being issued, seemingly without monitoring, as she had seen on some film sets that children were involved in some settings where the law was violated.

The Department expressed that it had done a lot in trying focus delivery at a point where it was needed in terms of the CIPA permit.. However, like other Departments, it was facing issues of shortage of staff. The Department had done a lot in terms of this Committee’s work, as also from other Committees and it was an ongoing process. The Department would look at issues relating to CIPA and see how it was dealt with at the institutional level. It could then address what the companies were enforcing or not enforcing.

Mr Morwamoche followed up on questions by Ms Bogopane-Zulu. He asked if there was differentiation between the African and Western ways of living, specifically in relation to child labour.

Mr Masutha explained that this particular legislation was putting South Africa in the centre of the debate about modern culture. Perhaps there was need to reflect, as a country, and ask if there was an appropriate platform to engage with these issues – he believed that an institutional space should exist to discuss such matters. There was no need to remove cultural practices, such as socialising at the river, merely by putting water into houses. There was a need to find a balance between a better standard of living and cultural practice. He would prefer that the Department, when taking matters back to their office, should collate a collective enquiry and collective response also involving other departments.

Mr Masutha raised the issue of orphans supposing to benefit from retirement funds,  but lack of follow-up and assistance to those children in getting their due. 

Mr Morwamoche raised some concerns about reporting of cases of children and the disabled. He referred to some incidents where the DoL kept quiet. He also raised the issue of the Unemployment Insurance Fund, and how children aged 15-17 were employed and their UIF deducted, as they apparently were unable to access it when they needed it.  He wanted to know if the department could do something in this instance.

The Department responded that the UIF deduction was not monitored. UIF was like a short term insurance, that would be used if the person lost his or her job. It was essentially the DoL’s involvement in social security. The UIF had a surplus now, and the debate was how best could such surplus be used, and whether it should remain as a surplus or be used in employment creation.

Mr Masutha said that he had hoped that DoL would be giving a brighter view in terms of oversight and implementation, and he had been disappointed. Issues such as refugee children were flagged during earlier discussions, and the Committee had urged that there must be continuing efforts by DoL, as the presentation had made it clear that there were intersectoral matters needing attention. He would prefer to receive presentations endorsed by the highest executive powers in the Department, as this was informing the legislation. Whenever the Committee was proposing policy issues, the officials at the meeting were expected to raise these with their executives.

Ms Bogopane-Zulu asked how the Department saw a referral system from DoL to other departments. She also expressed some concern that sometimes it seemed that issues were developed without consulting the necessary communities, especially in terms of cultural issues.

The Department responded that there were a number of inter departmental and intergovernmental groups that had been established. The CLPA, for example, dealt with Child Labour. 

The Chairperson expressed his hopes that DoL would talk about children working on farms.

Ms J Semple requested an explanation whether there was restriction on the hours that children could work. She also asked if there were enough labour inspectors for adequate delivery..

The Department advised the limit was 45 hours per week.

Mrs S Rajbally (MF) raised concerns about children, who, as young as 12, were working as waitrons in shopping malls. She said that lack of monitoring was a problem. 

Mr B Solo (ANC) advised the Committee that DPLG would not be able to attend the meeting. He also complained that often departments would not discuss matters with each other before coming to the meeting.

The Department explained that it was clearly set up in terms of its legislation requirements, therefore its response was geared towards this. The Department also expressed that it was doing its best in the face of resource limitations. It agreed that there were concerns with farms and child labour as these forms of child labour were always hidden, which made inspection difficult. These issues were often not successful in the labour court. The Department indicated that there was a need for a  legislative process to deal with the problem. The Department further explained that there were instances of abuse and exploitation being observed and it needed to be made aware of these issues as it would deal with them in the three phases under complaints-driven, directed and random inspections.

Mr Masutha referred to the case Mrs Rajbally had raised. To say our law clearly prohibited child labour was one thing. The flip side of that was the fact that children in any case were being used for labour. The child heading the Child Headed Households should not work. In Brazil there were some cases where families were effectively starving because children were not permitted to work, as they had no alternative source of income. He asked what the issue of the child going to the river to fetch water was really saying. He said that the Department really needed to look at the issues seriously and decide what it was saying, and what were the real practical issues being confronted. 

The Department responded that the law prohibited any work that prevented children from their social and mental and self development. Fetching water was not necessarily an infringement, as long as it did not interfere with these aspects.

Ms Dudley expressed that children needed protection but carrying it to an absurd degree was also not good . She referred to contradictions within the Bill and suggested that there was a need to weigh up the consistency of protection of 11 year olds, and children over 12.

Mr Morwamoche referred to an answer given by the Department that problems existed because of shortage of staff. He noted that the documents noted to a number of funded posts that were not filled, and requested an explanation.

The Department responded that it did not matter if all posts were filled, the Department would still not be able to inspect everything.

Mr Solo urged the Department representatives to convey to the Department that it must read and follow the feedback from the Children’s Institute & University of the Western Cape research.

Mrs Direko requested the Department to write a document to clarify some of the acronyms in its presentation and present it to the Committee.

Mr Masutha suggested that the research unit should develop a simple set of notes to explain some of the issues about the Bill. This was a very complex legislation and it had been misinterpreted by the media. Such a document would also assist government in explaining in simple terms what the legislation was saying.

Child protection, not prosecution: The main aims of the Bill
Ms Ronel van Zyl, Researcher, SA Law Reform Commission,  explained that there had been extensive meetings with stakeholders on matters relating to the Bill. She expressed a note of concern to the Department that the main aim of the Children’s Act was about the protection of children. Prosecuting labour offences was the DoL’s responsibility. The Department of Social Development’s responsibility lay in the area of protection of children against becoming victims of child labour. The focus should be clear.

Ms Mosa Ncgobo-Mbere, Director: Population and Development, Department of Social Development (DSD),  informed the Committee that all departments affected had been asked to come up with an implementation plan in terms of roles and responsibilities. The process had been put in place and deadlines were set.

The Chairperson expressed that the shortage of social workers was a critical issue but he had seen some progress being made. He informed that Committee that since it was no long visiting Mbizana, the DPLG could come in to make a presentation the following week.

Ms Dudley wanted to know if DSD had spent some time with DPLG so that when issues were being discussed they would have been properly informed of what each Department was doing.

The Chairperson expressed that there was a need to ask what was the real situation on the ground. He related to an incident where he was told by a mother who had adopted a child that, due to a change in the family circumstances, she was now a single mother unable to pay for the education. He asked what mechanisms were in place for cases like this. He was also very concerned that when there was a rape at a school, it had apparently taken the police several hours to respond.

Mrs Ncgobo-Mbere also highlighted that there was need to make people aware of the legal implications of some actions. There had been instances when NGOs wanted to take children overseas in a choir, without knowing about the permit requirements or legal implications.

Mr Masutha informed the Committee, with reference to the discussions earlier, that the Chair of Chairs had responded, but was in a meeting. He cautioned that Members needed to be prepared to have two meetings in the course of next week.

The meeting was adjourned.