Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

Minimum Age Convention, 1973 (No. 138) - Guatemala (Ratification: 1990)

The Committee notes the information supplied by the Government in its report and the attached documentation.

Article 2, paragraph 1, of the Convention. The Committee notes that according to section 3 of the Labour Code, the term worker covers any person offering his physical and/or intellectual labour to an employer under the terms of an employment contract or other employment relationship. According to section 31 of the Labour Code, minors of 14 years of age and above of either sex are able to consent to work and to receive and dispose freely of a wage agreed in advance. The Committee notes that, under these provisions, the Labour Code is not applicable to labour that does not arise from a contract, such as self-employment. The Committee notes that the Convention applies to all sectors of economic activity and covers all forms of employment or work, whether or not there is a contractual labour relationship and whether or not the work is paid or unpaid.

In its previous comments, the Committee noted the Government’s information to the effect that the Labour Code concerns only dependent employment. The Committee also noted that the Minister of Labour and Social Security, through the National Commission for Minors at Work, is collaborating with the NGOs concerned by child labour with a view, among other things, to establishing a minimum age for the informal sector. The Committee would be grateful if the Government would provide information on the manner in which the protection provided by the Convention is guaranteed to children working in an independent capacity.

Article 3

1. Age for admission to dangerous work. Further to its previous comments, the Committee notes that section 148(a) of the Labour Code prohibits the employment of minors in unhealthy and dangerous workplaces, and that section 148(d) prohibits the employment of minors in restaurants or similar establishments where alcoholic drinks are sold for immediate consumption. The Committee notes, however, that the Labour Code contains no definition of the term minor, and that it is therefore impossible to determine the minimum age at which a minor can be employed to do dangerous work. The Committee reminds the Government that according to Article 3, paragraph 1, of the Convention, the minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardize the health, safety or morals of young persons may not be less than 18 years. The Committee requests the Government to indicate the minimum age for admission to employment in dangerous work.

2. Types of dangerous employment or work. In its previous comments, the Committee noted that under the terms of section 148(a) of the Labour Code, work considered to be unhealthy and dangerous must be defined by regulations or the labour inspectorate, and the Government had communicated a copy of the Safety and Health Regulations. The Committee noted that the Regulations specify the measures that need to be taken to safeguard safety and health at work in general, but do not specify the types of work that are prohibited to adolescents aged below 18 years. The Committee once again requests the Government to indicate whether the types of dangerous employment or work prohibited to adolescents aged below 18 years have been determined, in accordance with Article 3, paragraph 2, of the Convention.

Article 6. The Committee notes that according to Article 6, the Convention does not apply to work done by persons at least 14 years of age in undertakings, where such work is carried out in accordance with conditions prescribed by the competent authority, after consultation with the organizations of employers and workers concerned, where such exist, and is an integral part of: (a) a course of education or training for which a school or training institution is primarily responsible; (b) a programme of training mainly or entirely in an undertaking, which programme has been approved by the competent authority; or (c) a programme of guidance or orientation designed to facilitate the choice of an occupation or of a line of training.

The Committee notes that according to section 171 of the Labour Code, the duration of an apprenticeship is fixed by contract in the light of factors such as the age of the apprentice, the grade, methods of instruction and nature of the work. The general labour inspectorate must ensure that the duration of the contract is respected. The Committee notes that section 171 of the Labour Code does not specify any minimum age for apprenticeship, and also notes that, under the terms of section 150 of the Labour Code, the general labour inspectorate can issue written authorization for normal day work by minors aged below 14 years or reduce the standard daily working hours for minors. This authorization must state that the minor will be working as an apprentice. The Committee requests the Government to supply information on the measures taken or envisaged to apply Article 6 of the Convention by ensuring that no minor aged below 14 years will be admitted to an apprenticeship, and to indicate whether consultations with the employers’ and workers’ organizations have taken place. The Committee also requests the Government to supply any relevant information on the application in practice of the provisions concerning apprenticeship.

The Committee notes that according to section 174 of the Labour Code, the executive authority, through the Ministry of Labour, Social Security and Public Education, can adopt regulations governing apprenticeships. The Committee requests the Government to indicate whether such regulations have been adopted and, where appropriate, to supply a copy

Article 7

1. Age for admission to light work. In its previous comments, the Committee had noted that under the terms of section 150 of the Labour Code, the general labour inspectorate can give written authorization for normal day work for minors aged below 14 years. This authorization must state (a) that the minor will be working as an apprentice, or is required to contribute to the family finances owing to the extreme poverty of his parents or guardians, (b) that the work involved is light work, the duration and intensity of which are compatible with the physical, mental and moral well-being of the minor, and (c) that school attendance requirements are met. The Committee had requested the Government to indicate the measures taken or envisaged to specify that only minors aged between 12 and 14 years should be allowed to carry out such light work. In this regard, the Committee reminds the Government that, in view of the fact that when the Convention was ratified, a minimum age of 14 years was specified, national legislation can, subject to certain conditions, authorize the employment of persons aged between 12 and 14 years to do light work. The Committee again requests the Government to indicate the measures taken or envisaged to ensure that no person of below 12 years of age is authorized to do light work, in accordance with Article 7, paragraph 4, of the Convention.

2. Types of light employment or work. In its previous comments, the Committee had asked the Government to indicate the activities in which light work could be authorized under section 150 of the Labour Code and to indicate the conditions of employment. The Committee reminds the Government that under the terms of Article 7, paragraph 3, of the Convention, the competent authority must determine the activities in which light work may be authorized, and once again requests the Government to indicate whether the activities in which light work can be permitted have been determined.