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Part E: Local Development, Labour, Health and Safety - 41. Labour | 41.2 Specific Prohibitions

In addition to the general labour rights and obligations outlined in this section, international law and best practice place a focus on the prohibition of particular types of labour, including but not limited to: child labour, forced labour and the use of indentured, migrant and/or prison labourers. The main drivers for use of these prohibited forms of labour are poverty, as well as the treatment of these groups as being cheap or free sources of labour. The presence of mining sites can exacerbate the exploitation of these vulnerable communities if appropriate labour policies are not instituted, followed and enforced carefully.

Mining laws can help to mitigate some of these risks by clearly stating the prohibitions within the law, for example by using the definition of a child consistent with the Convention on the Rights of the Child as a basis for determining when a child is underage for labour purposes. The law must also include adequate enforcement mechanisms, such as assessing the types of labourers working on site during official inspections, and including appropriate sanctions where a site is found to be engaging in prohibited forms of labour. Lastly, as with all areas of the mining law, prohibition of gender discrimination in labour practices should be clearly spelled out, and should include specific gender targets in the hiring, training, and knowledge transfer provisions in the mining law, labour and employment law, as well as relevant local content policies.

41.2 Example 1:

Article [_]

(1) Mining activities shall not employ as their workers:

a) Any human being, no matter his or her condition, minor of 18 years since his date of birth. If the date of birth cannot be officially determined, the [Regulating Authority] will determine the age of the worker to the effect of the application of this prohibition;

b) Indentured workers;

c) Prisoners, except under regulated work, duly coordinated with the [Regulating Authority]

d) Undocumented migrant workers, or any other foreign person without an appropriate work permit

Annotation

Usually, mining laws have specific prohibition of hiring children as workers. Accepting that children are special subjects of protection of law (as will be reflected in the next example), the law should also include protection for other human groups, that due their usually weak standing in the relationship with the mining projects, thus being forced to work under unfair and dangerous conditions.

41.2 Example 2:

Article [_]

(1) A holder of a mining right shall not employ or in any way use the following prohibited forms of labour for any mining activity, underground and over-ground:

(a) A child under eighteen years of age shall not be employed in a mine, or in any other work-site including non-formal settings and agriculture, where work conditions may be considered hazardous by the [Regulating Authority] and/or that places at risk the child's well-being, education, physical or mental health, or spiritual, moral or social development.

b) Indentured workers or other forms of forced labour, including unregulated use of prison labour;

c) Undocumented workers, migrant workers, or any other person without an appropriate work permit.

Article [_]

(1) It is an offense under this law to procure or employ prohibited labour in contravention of this section.

(2) In any proceedings under this section, if the age of the child is in issue, the burden of proofing that it was reasonable to believe, after investigation, that the child was not underage for the purposes of this section shall lie on the person employing or procuring the child for employment.

(3) The [Regulating Authority] will determine appropriate sanctions or other punitive measures in related regulations.

Annotation

Inspired by Sierra Leone’s mining law (2009), and Tanzania’s labour law (2004), this provision includes specific details that allow both government officers and users to understand the reasons and circumstances why children should not work in mining and the consequences of it.

We suggest a clear and detailed language, because parties in the relationship can clearly foresee the consequences of them omitting the application of the law.

Even if this provision is included in the general Labour Code, we advise to include it again in the mining law. Examples 1 and 2 do not exclude each other.