By Kate Collier, Partner at Webber Wentzel

A global effort to prevent and eliminate child labour has seen renewed vigour with certain of the timeframes for Sustainiable Development Goal 8.7 drawing to a close in coming years. Included in this goal is the ambition to end child labour in all its forms by 2025. Moving toward this aim in South Africa, the Department of Employment and Labour (DEL) has recently teamed up with the International Labour Organisation (ILO) to launch a European Union-funded project to end child labour in the agriculture sector.

Conventional wisdom often associates child labour with the employment of young children below the age of 15 years which is prohibited in our law. While the lawful employment of children who are 15 years old and above is provided for in the Basic Conditions of Employment Act (BCEA), the Occupational Health and Safety Act (OHSA) rightly identifies any worker below the age of 18 years as a child. There is a period of overlap in which the work a child carries out may constitute child labour, as opposed to youth employment. The distinction depends on the danger to which the child may be exposed and whether the work is age-appropriate.

Identifying when this distinction shall apply is therefore crucial for employers in the agriculture sector where work is often strenuous or includes the use of motorised equipment and pesticides. Child labour, distinct from youth employment, is the exploitation of children through work that deprives children of their childhood, their potential, and their dignity. In the context of the globalised nature of business operations and relationships, a particular focus has been on the supply chains and value chains of "high-risk" regions or industries, many of which are seen to be in Africa where socio-economic tensions and challenges tend to heighten the potential for child labour which constitutes a human rights violation.

The term “hazardous work” is defined in the ILO Convention on the Worst Forms of Child Labour[1] as work that exposes children to physical, psychological, or sexual abuse, or work that is harmful to their health or development. This includes work that is likely to harm the health, safety, or morals of children.

Every employer who hires a child worker or allows a child to work under their supervision must conduct a risk assessment for that work. This involves identifying and evaluating the risks and dangers the child might face, carefully looking at and understanding these risks, and implementing a plan to make the work safer.

The Regulations on Hazardous Work by Children in South Africa published in terms of both the OHSA and the BCEA (Regulations) provide guidance as to what employers must consider when assessing the risks inherent in the work performed by child workers. Employers must document a plan outlining safe work procedures and include steps to either eliminate or mitigate the risks. Additionally, employers must establish a monitoring plan to oversee the effectiveness of the implemented safety measures. Beyond these primary responsibilities, employers must consider specific factors relevant to the nature of the work and the unique vulnerabilities of children, such as risks associated with:

• children's characteristics, for example, adolescent growth spurts making youth more prone to injuries involving ligaments and tendons from repetitive movements, deviations in size rendering personal protective equipment (PPE) ineffective, heightened biological sensitivity to various agents, factors affecting sleep patterns, vulnerability to coercion or abuse, limited experience and maturity in safety judgments, adaptability to work routines, perception of dangers, understanding of safety messages, appropriateness of machinery and equipment, implications of skeletal development, and physiological and hormonal vulnerabilities during puberty;
  
  
• the types of work carried out by child workers, such as driving tractors, exposure to high voltage or electrical equipment, working with sharp tools, lifting heavy loads, or spraying crops; and
  
  
• the conditions in which child workers carry out such work, for example, night work, noisy environments, work that does not provide for adequate breaks, and working alone for extended periods of time which is common in shepherding increasing vulnerability to abuse. Notably, the Regulations also regulate work performed by children in hot or cold environments, which may rule out early morning work in cold winters if a child worker is exposed to temperatures below 6 degrees Celsius for a period of one hour, unless suitable PPE is provided by the employer, for example.

The Regulations also require employers to display a summary of the health and safety of children at work, in the workplace where it can be read by all workers, including child workers who are at the workplace.

Greater care is not only required in terms of the types of work and conditions in which such work is to be carried out but also with respect to the instruction provided to child workers to enable age-appropriate understanding and training for healthy and safe work practices. In addition, the supervision of child workers is a simple but important consideration in distinguishing between lawful youth employment and child labour.

Children have shorter attention spans and have less prior experience in handling equipment or performing certain jobs. In this regard, the Regulations advise that training sessions should be short, simple, relevant, and frequent. Employers should minimise distractions, use visual aids and encourage questions to safeguard youth in their employ. Those responsible for supervising child workers must recognise and accommodate adolescent characteristics, assign age-appropriate tasks, assess the physical capacity and maturity of young workers, and ensure the child's ability to comprehend written instructions and safety signs.

Specific health and safety topics must be covered during orientation and training for child workers, such as tractor safety, irrigation safety, tree fruit harvest safety, and working near embankments or excavations. Additionally, considerations like hot and cold environments, lifting heavy objects, and working at night are often encountered in agricultural settings. Machine safety, transportation and travelling safety, and water safety are crucial components, given the prevalent use of machinery in agricultural work. Training on personal protective equipment, electrical safety, and working with or near chemical substances are also specifically provided for in the Regulations.

The heightened obligations for employers associated with preventing physical injury to child workers are particularly important as children are more likely to become injured and are also more likely to suffer longer-term harm as a result of such injuries, which may result in long-term incapacity concerns in the child's adult life.

Distinguishing between legitimate youth employment and exploitative child labour must focus on the inherent risks associated with the work and working conditions child workers are exposed to. Differentiating child labour from lawful employment involves risk assessment, guided by the Regulations on Hazardous Work by Children which the ILO Convention in turn informs on the Worst Forms of Child Labour. These regulations are geared toward fostering an environment where child workers receive age-appropriate training, supervision, and care, ensuring their physical and psychological well-being.

An approach to developing safe systems of work through risk assessments and plans, tailored training, and proper supervision underscores the collective responsibility to safeguard the rights, dignity, and future of child workers in the agricultural sector and prepare them to be our next generation of farmers.