Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

Medical Examination of Young Persons (Industry) Convention, 1946 (No. 77) - Spain (Ratification: 1971)

I. Article 2 of the Convention. In its previous comments, the Committee noted the allegations made by the General Workers' Union (UGT) and the Trade Union Confederation of Workers' Commissions (CC.OO), stating that the Convention lacks legal coverage in the country; that, in practice, verification as to whether the young person has been considered fit for work by a qualified physician is not required; that the authority competent for sending the document attesting fitness for employment of the young person and defining conditions of work, had not been determined.

The Committee noted the indications of the Government according to which the medical attestation for young persons working in industrial activities is required in some cases by the relevant labour ordinances, the Act on the hiring of labour of 1944 (section 178) and Decree No. 1036 of 1959 and its Regulations. The fitness for work of young persons is attested by means of an "optional certificate" issued by the corresponding medical practitioner. It also indicates that the requirement of medical examinations is established more specifically in certain collective agreements. The Government also referred to the Bill on occupational health, and indicates that medical examinations are to be carried out when the worker so requests or gives his consent.

The Committee noted the comments made by the General Workers' Union (UGT) in 1992, in which the Union reiterated that the general provisions on this subject do not ensure adequate protection for young people and that the collective agreements on their own do not offset this inadequacy. For its part, the Trade Union Confederation of Workers' Commissions (CC.OO) indicated that non-observance of the Convention is particularly serious in Spain in view of the high rate of unemployment in the country, especially among young people, and that the Bill on occupational health, makes no mention of the medical examination of young persons.

The Committee observed that the Act on the hiring of labour of 1944 which provided, in section 178, that the medical examination of young persons was compulsory, was repealed by Act No. 8 of 1980 issuing the Workers' Charter. In this connection, the Government stated that the Act on the hiring of labour may continue to be partly applied as a regulation under final provision No. 4 of the Workers' Charter which establishes that provisions of laws that regulate matters not covered by the Charter itself shall remain in force as regulations.

The Committee also noted from the comments made by the two above-mentioned trade union organizations that it is not clear which national laws give effect to the requirements of the Convention and that in practice, the provisions of the Convention are not applied. In its opinion, the fact that there is no obligation explicitly laid down in recent laws and that there is uncertainty as to whether section 178 and the requirement laid down in it apply may well be linked to the fact that the requirement of the Convention is not observed in practice. Moreoever, it is symptomatic that the texts of the various collective agreements supplied by the Government contain provisions on annual medical examinations for all workers; none of them refers to the medical examination for the admission of young people to employment.

The Government also refers to section 6, II(a), of Decree No. 1036 to reorganize enterprise medical services, under which it is a function of company doctors to provide medical attestation for admission to employment for the purpose, inter alia, of establishing fitness. The Committee draws the Government's attention to the fact that, in accordance with the Convention, the requirement of a detailed medical examination in order to attest fitness for the employment of young persons must be explicitly established. Such examination is particularly important in order to ensure the special and specific protection that the Convention affords to this category of worker.

The Committee asked the Government to examine the issues that have been raised in the light of the Convention and to inform it on the measures taken or under consideration to ensure the observance thereof. The Committee expressed the hope that the adoption of the Act on occupational health would make it possible for the national legislation and practice to be brought into line with the Convention.

Article 1, paragraph 1. In earlier comments the Committee asked the Government to take the necessary measures to apply the provisions concerning the medical examination for fitness for employment to young persons who, without being wage earners are employed in family undertakings, as provided for in the Convention. In this connection, the Committee noted that the General Workers' Union (UGT) has stressed in its comments the absolute lack of protection of these young persons who are not covered by the regulations on occupational health.

In this respect, the Government indicated that it actually admits that young persons who are not engaged on account of an employer are excluded from the scope of the provisions on medical examination.

The Committee hopes that when the necessary measures are taken to give statutory effect to the requirement of a medical examination for fitness for employment, such requirement will be extended to young persons working in family industrial undertakings.

II. The Committee notes the comments of the Trade Union Confederation of Workers' Commissions (CC.OO) of 21 October 1993 which have been supplied to the Government, which alleged once more that the Convention was not being applied at all. According to the organization referred to, the Government often raises in its defence the regulations on medical examination to prevent occupational diseases (p. e.g., section 191 of the consolidated text on social security and regulations for development), but these examinations apply only to undertakings that have a risk of occupational disease and are not applicable to the majority of sectors and undertakings as required by the Convention. The Committee requests the Government to supply information on all the points raised in the observation.