Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Minimum Age Convention, 1973 (No. 138) - Portugal (Ratification: 1998)

The Committee notes the information provided by the Government in its first and subsequent reports and the communication of the General Workers’ Union (UGT) attached to the Government’s report of 2002.

Article 3. 1. Age for admission to hazardous work. By virtue of section 124(3) of Legislative Decree No. 49,408 of 24 November 1969, as amended by Act No. 58/99 of 30 June 1999, the types of work which by their nature or the circumstances in which they are carried out are likely to jeopardize the physical, psychological or moral development of young persons are prohibited or regulated by special legislation. The Committee notes that section 3 of Legislative Decree No. 107/2001 prohibits young persons from being employed in activities where there is a risk of exposure to certain agents, as well as in the procedures and types of work specified in Annex I of the Legislative Decree. The Committee notes that neither Legislative Decree No. 49,408 of 14 November 1969 and its amendments, nor Legislative Decree No. 107/2001, contain a definition of the term "young person". The Committee requests the Government to indicate whether the prohibition of hazardous work, under section 124(3) of Legislative Decree No. 49,408 of 24 November 1969, as amended by Act No. 58/99 of 30 June 1999 and under section 3 of Legislative Decree No. 107/2001, covers children and young persons under 18 years of age, in accordance with Article 3, paragraph 1, of the Convention.

2. Types of work likely to jeopardize morals. The Committee notes that the prohibition of assigning young persons to activities in which a risk of exposure to certain agents as well as to the procedures and types of work specified in Annex I of Legislative Decree No. 107/2001 does not include work likely to jeopardize the morals of young persons. The Committee requests the Government to indicate whether the national legislation contains provisions prohibiting young persons under the age of 18 from being employed in types of work that are likely to jeopardize their morals, in accordance with Article 3, paragraph 1, of the Convention.

3. Work by young persons from 16 to 18 years of age. The Committee notes that, by virtue of section 4(1) of Legislative Decree No. 107/2001, young persons of at least 16 years of age may, under certain conditions, be employed in activities involving a risk of exposure to certain agents, in particular the physical and biological agents listed in Annex II of the Legislative Decree. Under subsection 2 of this provision, the employer shall evaluate the nature, extent and length of exposure of young persons to these activities or types of work, and take the necessary measures to avoid the risk. The Committee points out that, according to Article 3, paragraph 3, of the Convention, the national authority may, after consultation with the organizations of employers and workers 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 and that the young persons have received adequate specific instruction or vocational training in the relevant branch of activity. It requests the Government to provide information on the measures taken or envisaged to ensure that work performed by young persons of 16 to 18 years meets the above conditions.

Article 6. The Committee notes that, by virtue of section 2(1) of Legislative Decree No. 396/91 of 16 October 1991, the minimum age of 16 years for admission to employment does not apply to activities performed in enterprises when the work is done according to conditions prescribed by the competent authority 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 vocational training mainly or entirely in an enterprise which has been approved by the competent authority; (c) a programme of guidance designed to facilitate the choice of an occupation or line of training. The Committee notes that, for Article 6 of the Convention to be applicable, persons working in enterprises must be at least 14 years of age and consultations must have been held with employers’ and workers’ organizations. It therefore requests the Government to provide information on the measures taken or envisaged to apply this provision of the Convention.

Article 7. 1. Authorization for employment on light work. The Committee notes that, by virtue of section 122(2) of Legislative Decree No. 49,408 of 24 November 1969, as amended by Act No. 58/99 of 30 June 1999, young persons under the age of 16 years having completed their compulsory education may be employed on light work on condition that the work, by its nature and the specific conditions under which it is carried out, is not likely to jeopardize their safety, health, school attendance, participation in guidance and training programmes, or their ability to benefit from the instruction received or their physical, psychological and moral development. It also notes that section 2 of Legislative Decree No. 107/2001 of 6 April 2001 regulates the performance of all the types of light work provided for under section 122(2) of Legislative Decree No. 49,408 of 24 November 1969, as amended by Act No. 58/99 of 30 June 1999, and provides that the types of work shall consist of simple and well-defined tasks and that the work done by a young person in a family enterprise shall be under the supervision and guidance of a member of the family. The Committee also notes that section 5(2) of Act No. 58/99 of 30 June 1999 provides that young persons below 16 years of age having completed compulsory education may engage in own-account work if it is light work.

The Committee points out that, by virtue of Article 7, paragraph 1, of the Convention, the national legislation may authorize the employment or work of young persons of 13 years of age on light work. It notes that section 122(2) of Legislative Decree No. 49,408 of 24 November 1969, as amended by Act No. 58/99 of 30 June 1999, section 2 of Legislative Decree No. 107/2001 of 6 April 2001 and section 5(2) of Act No. 58/99 of 30 June 1999 permit the employment of young persons under the age of 16 years on light work without, however, fixing a minimum age from which young persons may begin to perform such work. It therefore requests the Government to provide information on the measures taken or envisaged to ensure the application of Article 7, paragraph 1, by providing that young persons under the age of 13 years shall not be employed on light work.

2. Determination of types of light work. The Committee notes that Legislative Decree No. 409/71, as amended by Act No. 58/99 of 30 June 1999, regulates the conditions in which light work may be authorized. It reminds the Government, however, that by virtue of Article 7, paragraph 3, of the Convention, the competent authority shall determine the activities in which employment or work may be permitted. The Committee requests the Government to take the necessary measures to ensure the application of this provision of the Convention by determining the activities in which light work or employment may be authorized.

Article 9, paragraph 3. The Committee notes the information provided by the Government in its report indicating that section 19 of Legislative Decree No. 49,408 of 24 November 1969, as amended by Act No. 58/99 of 30 June 1999, contains a new subsection (h) respecting a register of the personnel employed by an entity. The Committee notes, however, that Act No. 58/99, which is available to the Office, does not contain a provision on this subject. It therefore requests the Government to send it a copy of section 19 of Legislative Decree No. 49,408 of 24 November 1969, as amended by Act No. 58/99 of 30 June 1999.

Part V of the report form. The Committee notes with interest the information provided by the Government in its reports, in particular the efforts made with regard to child labour statistics. In this respect, the Committee notes the study on the social characteristics of Portuguese families with school-age children, carried out by the Ministry of Labour and Solidarity with the support of ILO/IPEC in October 1998. It notes that this study concerns children from 6-14 years of age. In its report of 2000, the Government indicates that, although Portugal specified a minimum age of 16 years, the Convention fixes it at 15 years, and this is the reason why such young persons are excluded from the study. The Committee notes that in its communication the General Workers’ Union (UGT) points out that, in 2001, 91 cases of young persons under 16 years of age employed in illicit work were reported. It also notes that, according to the statistics provided by the Government in its report of 2003, a total of 61 cases of young persons under 16 years of age were reported to be working. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that no young person under 16 years of age is admitted to employment or work in any occupation. It also requests it to continue to provide information on the manner in which the Convention is applied in practice.

In its communication the UGT also points out that legislation relating to the participation of young persons under 16 years of age who not have not completed compulsory education in activities such as artistic performances, cultural or artistic activities or publicity, is being prepared. The Committee requests the Government to forward a copy of the legislation once it is adopted.

The Committee requests the Government to provide a copy of the following legislative texts:

-  Legislative Decree No. 235/92 of 24 October 1992;

-  Legislative Decree No. 440/91 of 14 November 1991;

-  Legislative Decree No. 74/73 of 1 March 1973;

-  Legislative Decree No. 104/89 of 6 April 1989;

-  Act No. 15/97 of 31 May 1997.