Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Minimum Age Convention, 1973 (No. 138) - Chile (Ratification: 1999)

Article 1 of the Convention. National policy. The Committee notes with interest that, in the context of the National Policy for Children (2001-2010), the National Committee on the Elimination of Child Labour and the Protection of Working Minors adopted a "Plan for the prevention and gradual elimination of child and adolescent labour in Chile". It notes that the objectives of the plan are to: raise public awareness of the problem of child labour; collect information on child labour; amend national legislation and draw up a national plan for monitoring child labour; draw up a profile of the boys, girls and adolescents used in the worst forms of child labour; and implement the plan. The Committee requests the Government to provide information on the implementation of the "Plan for the prevention and gradual elimination of child and adolescent labour in Chile", and on the results obtained with regard to the elimination of child labour.

Article 3, paragraph 2. Determination of types of hazardous employment or work. In its previous comments, the Committee noted that section 14(1) of the Labour Code provides that minors under 18 years of age may not be admitted to work requiring excessive strength or to any activity which is likely to endanger their health, safety or morals. It also noted that, with the exception of section 15(1) of the Labour Code stating that minors under 18 years of age may not work in night clubs or other similar establishments or in premises where alcohol is consumed, the national legislation does not appear to determine hazardous work. The Committee notes the information provided by the Government in its report under Convention No. 182. It notes in particular that between March 2002 and January 2004 the Ministry of Labour and Social Welfare, in collaboration with ILO/IPEC, carried out a project entitled "National survey of child and adolescent labour and identification of the cases of the worst forms of child labour". In this regard, the Committee notes the study entitled "Child and adolescent labour in figures - National survey and register of the worst forms", published at the beginning of 2004. The Committee notes that the study classifies hazardous work as follows: work which is hazardous by nature, namely work in mines or quarries or underground work, work on the open sea, work at heights above 2 metres, work in cold storage rooms, work in foundries, and work which is hazardous because of the circumstances in which it is performed, namely work involving excessively long working days (more than eight hours), night work, work where there is an absence of health and safety measures and work which prevents school attendance. The Committee requests the Government to communicate the list of types of hazardous work which have been determined, once it has been finalized. It also requests the Government to provide information on the consultations held with the employers’ and workers’ organizations concerned.

Part V of the report form. Application of the Convention in practice. Further to its previous comments, the Committee notes that, according to the study entitled "Child and adolescent labour in figures - National survey and register of the worst forms", 3 per cent - a total of 107,676 girls, boys and adolescents - are engaged in unacceptable work. Of this total, 36,542 are between 5 and 11 years of age and 31,587 are between 12 and 14 years of age. More than 25,000 children and adolescents are working in the agricultural sector, in the central and southern parts of the country. According to the study, 98 per cent of children are in basic education. The Committee also notes the statistics provided by the Government. The Committee is concerned by the situation of children less than 15 years of age who are compelled to work in Chile. It requests the Government to continue to provide statistics and information on the nature, extent and trends of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of contraventions reported, penal sanctions applied, etc. To the extent possible, all information provided should be disaggregated by sex and age.

The Government indicates that it noted the comments made by the Committee in its previous direct request. However, the Government indicates that, in order to reply to the questions raised by the Committee, it must either consult other national, public and private bodies and institutions or undertake research to find information. However, inasmuch as there is a lack of economic and human resources, it has not been possible to respond to the direct request. The Committee notes the information communicated by the Government and can only repeat its previous comments on the following points.

Article 2, paragraph 1. 1. Scope of application. Under the terms of section 1, the Labour Code and its subsidiary legislation apply to labour relations between employers and workers. The Committee notes that by virtue of this provision the national legislation governing labour rights does not apply to employment relationships which are not based on a contract, such as self-employment. The Committee reminds the Government that the Convention applies to all sectors of economic activity and that it covers all forms of employment or work, whether or not there is a contractual employment relationship and whether or not the work is remunerated. It therefore requests the Government to provide information on the manner in which the protection envisaged by the Convention is ensured for children exercising an economic activity on their own account.

2. Minimum age for admission to employment or work. (i) Possibility for a married 12-year-old girl to work. The Committee notes that section 13(2) of the Labour Code provides that, with the authorization of certain persons, young persons between 16 and 18 years of age may be parties to a labour contract. Section 13(6) lays down that the provisions of subsection 2 concerning the minimum age for admission to employment or work shall not apply to married women, whose situation is governed by section 150 of the Civil Code. Under section 150(1) of the Civil Code, a married woman may freely exercise an occupation irrespective of her age. Under the legislation governing marriage, a man over 14 years of age and a women over 12 years of age may marry, with the authorization of certain persons if they are under 18 years of age (section 4 of the Act concerning civil marriage of 1884 and sections 26 and 106 of the Civil Code). The Committee notes that a joint reading of these provisions shows that a woman over 12 years of age could marry and work. It reminds the Government that the Convention does not envisage any exception to the minimum age for admission to employment or work, namely 15 years in the case of Chile, by reason of the marital status of young persons, whether they are girls or boys. It therefore once again requests the Government to provide information on this subject and on the measures adopted or envisaged to ensure that the provisions concerning the minimum age for admission to employment or work set out in the Labour Code also apply to married women between 12 and 15 years of age. Furthermore, the Committee requests the Government to provide information on the situation of married men between 14 and 15 years of age.

(ii) Domestic work. The Committee also notes that, under section 10 of Act No. 3654 of 1930 concerning compulsory primary education, persons who employ as domestic workers children who have not completed their compulsory schooling are obliged to enrol them in a school and facilitate their regular school attendance. The Committee notes that this provision does not specify the minimum age for admission to employment in domestic work. In view of the fact that the Government specified 15 years as the minimum age for admission to employment or work when ratifying the Convention, and has not excluded from the scope of the Convention certain categories of employment or work, in accordance with Article 4, the Committee requests it to take the necessary measures to ensure that the national legislation provides that no person under 15 years of age shall be employed as a domestic worker.

Article 2, paragraph 2. Raising the minimum age for admission to employment or work. The Committee notes that section 13(2) of the Labour Code, as amended by Act No. 19.684 of 20 June 2000, provides that young persons between 16 and 18 years of age may be parties to a contract of employment with the authorization of certain persons. The Committee notes with interest that this amendment raised the minimum age for admission to employment or work set out in the national legislation from 15 to 16 years. The Committee reminds the Government that, under Article 2, paragraph 2, of the Convention, it may inform the Director-General by a further declaration that it is raising the minimum age previously specified.

Article 6. Apprenticeship. The Committee notes that apprenticeship contracts are regulated by sections 78-87 of the Labour Code. Under section 79 of the Labour Code, only workers under 21 years of age may be parties to an apprenticeship contract. While noting the information provided by the Government in its report to the effect that the national legislation does not authorize work by persons under 14 years of age in enterprises, the Committee notes that the Labour Code does not contain provisions establishing the minimum age to be party to an apprenticeship contract. It reminds the Government that Article 6 of the Convention permits work done by persons of at least 14 years of age in enterprises in the context of an apprenticeship programme. The Committee therefore requests the Government to indicate whether the national legislation contains provisions establishing a minimum age to be party to an apprenticeship contract. It also requests the Government to provide information on apprenticeship programmes in practice.

Article 7. Determination of light work. The Committee notes that, under section 13(3) of the Labour Code, young persons of 15 and 16 years of age may, with the authorization of certain persons, perform light work, on condition that: (a) they have completed their compulsory schooling; and (b) the work is not prejudicial to their health and development and does not interfere with their school attendance or their participation in an educational programme. The Committee requests the Government to indicate the activities in which employment or work could be authorized and to provide information on the applicable conditions of work, particularly with regard to the hours of work and conditions of employment or work, in accordance with Article 7, paragraph 3, of the Convention.

Article 8. Artistic performances. The Committee notes that, under section 15(2) of the Labour Code, young persons may participate in artistic performances with the authorization of their legal representative and the youth court judge. However, it notes that section 16 of the Labour Code provides that, in specifically defined cases and with the authorization of a legal representative or the youth court judge, persons under 15 years of age may be parties to a contract involving persons or entities related to the theatre, cinema, circus, radio, television or other similar activities. The Committee reminds the Government that, in accordance with Article 8, paragraph 1, of the Convention, permits to participate in artistic performances have to be granted on an individual basis by the competent authority, after consultation with the organizations of employers and workers concerned. Consequently, while the youth court judge may be mandated to grant permits as the competent authority, the authorization of the young person’s legal representative is not sufficient to fulfil the requirements of the Convention. The Committee therefore requests the Government to provide information on any measures adopted or envisaged to ensure that permits to be party to a contract involving persons or entities related to the theatre, cinema, circus, radio, television or other similar activities, as provided for in section 16 of the Labour Code, are granted in conformity with the conditions set forth in Article 8, paragraph 1, of the Convention. It also requests the Government to provide information on the procedures relating to permits and the conditions to which permits are subjected, particularly with regard to hours of work and conditions of employment or work, as well as on the number and nature of the permits granted.