I recall that not too long ago, two parents in Hong Kong were charged by the court for pulling their teenage daughter from school. The parents argued that their daughter could not cope in her school and could be better off schooled from home. While their case seems reasonable, they were fined for violating the compulsory education provisions within the law. The verdict, in a controversial way, shows how laws on children’s right to education can be enforced.
But lately, I have begun to learn that in some places, such controversies would not even exist because laws are not sophisticated and comprehensive enough.
Imagine that you are a 13-year-old child in Cambodia. You may be from a very poor family and your parents and siblings depend on your income for basic needs. Or, your family members may not be really poor. But they either perceive themselves as poor or are fearful of poverty in the future. They may think that sending you, a young child, to work can sustainably enhance the well-being of the whole family. In any case, going to school is a financial burden. Instead, you now work several jobs, pounding piles of salt under the scotching sun in the daytime and scavenging in rubbish dumps in the evenings.
Working under excessive heat, wading through junk and working long hours are all harmful activities to a child’s health and physical development. Stopping school for a youngster who has barely finished sixth grade may hamper intellectual development. Yet, believe it or not, in many of these cases, there are no laws that can protect a child from leaving school, entering child labour and even working under hazardous and demeaning conditions.
In Cambodia, Section 1 of the Labour Law of 1997 specifies that it only “governs relations between employers and workers resulting from employment contracts” and that workers are those who have “signed an employment contract in return for remuneration, under the direction and management of another person.” In effect, only those children contracted to work in formal registered businesses are protected by the Labour Law.
Various studies have already shown that many child labourers in Cambodia fall outside the scope of the Labour Law. A 2006 report of Understanding Children’s Work (UCW), a joint ILO, UNICEF and World Bank project, suggests that child labour in Cambodia is most prevalent in the informal economy. Children working as porters, scavengers and beggars often work on a casual basis without fixed employers or contracts. Such informal sector work provides a natural shelter for hazardous working conditions since workplaces are not accessible to the labour inspection regime.
Furthermore, an overwhelming 90 percent of economically active children work as “unpaid family workers.” These children usually work in small-scale enterprises that are home-based and part of the informal economy.
Sometimes, children simply follow their parents to work. In rubber plantations, studies found that parents rely on their children’s efforts to collect more sap and earn higher incomes.
In other cases, children are sent to be child domestic workers and toil within private homes (not their own home). In addition to not having legally bound contracts, these children may not be directly remunerated; the payment may go directly to their parents. At times, children can even be sent to work in order to pay off family debts.
The Labour Law, as it stands, does not cover any of these children. In fact, comparing the Labour Law and the ratified ILO Convention No. 138 (Minimum Age for Admission to Work), one may find that Cambodia’s declared minimum age in the Convention is 14 years old, while the Labour Law applies a stricter standard of 15 years old. This discrepancy implies that among formal, registered businesses, children can be prohibited from work until 15 years old. However, for those children working in informal, unregistered enterprises, there are even no laws to enforce the lower standard of 14 years old. Therefore, there are numerous legislative gaps that should be filled before children are fully protected by law to obtain basic education and to be prohibited from hazardous types of work.
To strengthen legislative frameworks on combating child labour, a separate Child Labour Law may be necessary. The Labour Law by nature covers only formal employment relations and should not delve into the informal economy. It may make no sense to add more and more provisions in child labour there. A separate law that considers the specific concerns and nature of child labour in Cambodia may be more appropriate.
This separate law can then define “employment” or “work” more broadly when children are involved. As an example, child labourers may be entitled to the same benefits and protection in the Labour Law whether under an employment contract or self-employed (without contracts), remunerated directly or not in cash or in kind, including within family undertaking and on means of transportation. Similarly, the definition of “employers” who may be held responsible for using children for work can be expanded to those within the informal economy, including owning home-based or family-oriented businesses. In turn, more of those working children now left out of the Labour Law can be protected by other laws.
Child labour is also closely linked to education issues; in fact, some practitioners would characterize them as “two sides of the same coin.” While it is difficult to make an account of child labourers in the informal economy, tracking children’s enrolment and attendance in school may be more manageable. Also, rather than spending much time and effort to track down shady informal economy employers, it may be easier to give parents, guardians, schools and the government some responsibility to put all children in school. These thoughts render an Education Law necessary. Specifically, laws on compulsory education can be in place to ensure that all children obtain at least 9 years of basic education, say from ages 6 to 15.
Education Law and the Child Labour Law complement each other in various ways. In the medium run, for example, parents who put their young children to work or permit their older children to work in exploitative conditions, as well as employers in the informal and formal economies, can be held responsible for child labour. Schools and the Labour Inspectorate can also become jointly responsible for issuing permits for underage workers (e.g. aged 12-15 years) to perform Light Work. These types of work, based on international law, should not be hazardous and would not interfere with schooling. In these cases, labour inspectors and school administers can jointly monitor whether the child’s working conditions meet legal standards.
An Education Law has been in place in Cambodia since 2008, but until now, its enforcement are still being debated and guidelines (Prakas) to operationalize the law have yet to be drafted. Expediting these debates can certainly accelerate the country’s progress towards achieving Education for All and fulfilling its commitment to eliminate all the worst forms of child labour by 2016.
As Cambodia develops its legislative frameworks on children, children’s education and child labour, it may also be necessary to check for inconsistencies, clarify ambiguities in law articles and their guidelines and set up an effective enforcement machinery.
To conclude this brief discussion on laws on child labour and education, I recently came across a Pamphlet on Child Labour Laws for the state of California in the U.S. I found that the California Labour Code close to 2,000 articles and its Education Code has almost 50,000 provisions. These numbers contrast with a Labour Law of only 389 articles and a non-operational Education Law in Cambodia. It is indeed inconceivable that a 400-article document can protect every worker in all possible economic sectors in the country. In quantitative terms (number of laws, guidelines and articles) and qualitative terms (coverage and enforcement of laws), there surely is still a long way to go.
Further Reading
“Children’s Work in Cambodia: A Challenge for Growth and Poverty Reduction,” Understanding Children’s Work, April 2006.
1997 Labour Law, Royal Government of Cambodia
"Experiences and Lessons Learned on Child Labour Monitoring: Rubber, Salt and Fish Sectors in Cambodia," ILO, June 2005.
"Pamphlet on Child Labour Laws," Division of Labour Standards Enforcement, Department of Industrial Relations, State of California.
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