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

Minimum Age Convention, 1973 (No. 138) - Uruguay (Ratification: 1977)

The Committee notes the observations made by the PIT-CNT (Inter-Trade Union Assembly - Workers’ National Convention) on the application of the Convention that were transmitted by the Government in a communication dated 30 September 2002.

Night work of young persons aged 16.

According to the PIT-CNT, the National Institute for Minors (INAME), the authority for youth policy matters, has adopted resolutions authorizing the night work of young persons aged 16, in breach of the provisions of the Night Work of Young Persons (Non-Industrial Occupations) Convention, 1946 (No. 79), and the Minimum Age Convention, 1973 (No. 138).

According to the PIT-CNT, resolution No. 2028/01 of the Directorate of the INAME authorizes the departmental directions of the interior of the country and the Inspection, Training and Labour Market Integration Division of Montevideo to deliver temporary individual permits (for a period of up to three months between 15 December and 15 March) authorizing young persons aged 16 to work between 10 p.m. and 12 p.m., provided that the activity neither interferes with their course of education nor jeopardizes their moral or physical safety. In addition, the prior consent of the father or guardian or other person in charge of the young person needs to be obtained. The PIT-CNT also indicates that such authorizations have been granted since 1977, when for the first time the enterprise "Gauchito de Oro S.A. McDonald’s Uruguay" was granted an authorization to employ on its premises in Punta del Este, Maldonado and Piriapolis, young persons aged between 16 and 18 years to perform night work until 12 p.m. The PIT-CNT deems the authorizations granted for the night work of young persons aged 16 to be illegal and in breach of the Night Work of Young Persons (Non-Industrial Occupations), 1949 Convention (No. 79) and the Minimum Age Convention, 1973 (No. 138).

Article 3 of the Convention

Under Article 3 of the Convention, the minimum age for admission to any type of employment 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 shall not be less than 18 years (Article 3(1)); the competent authority or national laws or regulations shall determine, after consultation with the organizations of workers and employers concerned, these dangerous types of work (Article 3(2)); and the competent authority or national laws or regulations may, after consultation with the organizations of workers or employers concerned, authorize employment or work as from the age of 16 years on condition that the health, safety and morals of the young persons concerned are fully protected (Article 3(3)).

National legislation establishes in section 6 of Decree No. 852/71 that, for the purposes of the prohibition of night work of children over 14 and below 18 years, the night period may not be shorter than 12 consecutive hours, including the interval between 10 p.m. and 6 a.m.

According to the PIT-CNT, national legislation has recognized the hazardous nature of night work and therefore prohibited it for young persons under 18 years, precisely in recognition of the major physical and psychological damage, the difficulties and dangers of the way to and from the place of employment, and the family problems. According to the PIT-CNT, the hazardous nature of night work is aggravated in Uruguay by the great precarity of transport at night and the danger for the morals of young persons due to the fact that the authorizations have been granted for places which by their nature of tourist sites present problems of prostitution. Given the pronounced "hardness" and hazards of night work, the best for the young person is the absolute prohibition provided in the national legislation.

The Committee notes that, while the Convention provides the possibility of employing young persons of 16 years of age in hazardous work, this requires both a guarantee that their health, safety and morals are fully protected, and the prior consultation of workers’ and employers’ organizations. According to the PIT-CNT "the resolution lacks a legal base and is in breach of Decree No. 852/71, it being pointed out that no account was taken of the need for prior consultations with workers’ and employers’ organizations which it is mandatory to hold in order to determine the exceptions to the prohibition of night work of young persons". Likewise, no account was taken of the opinion of the legal sector of the INAME, which, when consulted about the legality of the request of McDonald’s Uruguay, considered that under the law in force, the INAME could not accede to the request of McDonald’s in granting an authorization for persons under 18 years to work at night. Also, the Direction of the Taxes and Fines Department declared in January 2000 that "the resolution of the Directorate was illegitimate".

The Committee hopes that the Government will take the necessary measures to ensure the protection of young persons against night work, strictly prohibited in national legislation, and thus classified as hazardous work.

The Committee further notes that Uruguay has ratified the Worst Forms of Child Labour Convention, 1999 (No. 182).