Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Minimum Age Convention, 1973 (No. 138) - Peru (Ratification: 2002)

The Committee notes the observation of the General Workers Confederation of Peru (CGTP) on 25 August 2009.

Article 1 of the Convention and Part V of the report form. National policy and application of the Convention in practice. In its previous comments the Committee expressed its concern at the situation of children who are forced to work out of personal need, particularly in small-scale mining operations and as domestic workers. It therefore urged the Government to intensify its efforts to improve the situation gradually and asked it to supply detailed information on the measures taken in this regard as part of the implementation of the “National plan for the prevention and elimination of child labour (2005–10)” and the ILO–IPEC regional project on the elimination of child labour in Latin America (2006–10), and also on the results achieved. Moreover, the Committee asked the Government to send a copy, once it is finalized, of the study on the scale and features of child labour, which, according to ILO–IPEC information, was in the process of being drawn up.

The Committee notes that, according to the information supplied by the Government in its report, various actions have been undertaken as part of the implementation of the “National plan for the prevention and elimination of child labour”, namely: (i) the setting up of the National Committee for the Prevention and Elimination of Child Labour (CPETI), a coordinating body for public and private institutions working on the prevention and elimination of child labour and the worst forms of child labour; (ii) drawing up for this Committee of the list of hazardous types of work, prohibited for young persons, adopted by Supreme Decree No. 007-2006-MIMDES and valid for two years; (iii) promulgation of the Labour Inspection Act 2006, section 6 of which provides that places where children work are places liable to inspection and section 31 of which prescribes that infringements reported in the area of employment relations must be considered extremely serious in cases where they assume special importance because of failure to comply with an obligation or where there are infringements of workers’ rights which enjoy special protection in the national legislation; (iv) formulation and public presentation of the “Plan of action for the elimination of child labour in small-scale mines”, which comprises objectives and principal activities which have been scheduled for five years to combat this worst form of child labour; (v) presentation of a new proposal to amend the Children and Young Persons Code, in order to bring its provisions into line with the ILO Conventions, the Convention on the Rights of the Child and the national legislation. This proposal has been referred to the Review Commission of the Congress of the Republic (whose mandate has been extended until the end of 2009), and also to two representatives of the CPETI forming part of this Commission; (vi) drawing up in March 2009 of the protocol for the prevention and monitoring of child labour by the Inter-Institutional Action Alliance for the prevention and gradual elimination of child labour in the district of Independencia; (vii) inclusion of provisions relating to child labour and the worst forms of child labour in the Penal Code; (viii) approval of the CPETI “Strategic plan for the prevention and elimination of child labour 2008–10”; (ix) setting up of regional committees and formulation of regional plans for the prevention and elimination of child labour; and (x) laying down of a principle by the “Mi vivienda” (“My housing”) fund in Agreement No. 04-15D-2007, according to which the recipients of allowances must undertake not to use child labour in the implementation of housing projects. The Committee also notes the table of statistics and copies of inspection and infringement reports attached by the Government to its report under the Worst Forms of Child Labour Convention, 1999 (No. 182). It observes that these documents refer to inspections undertaken in the catering, sales and clothing sectors in the province of Lima. The Committee requests the Government to continue to supply information on any measures taken to combat child labour as part of the National plan for the prevention and elimination of child labour (2005–10) and the ILO–IPEC regional project on the elimination of child labour in Latin America (2006–10), particularly with regard to the situation of children forced to work out of personal need, particularly in small-scale mining operations and as domestic workers, and also on the impact of such measures in relation to the set objective. The Committee also requests the Government to supply statistics relating to the employment of children and young persons throughout the national territory, including information on the number and nature of reported infringements, the number and financial amount of penalties imposed, and extracts from the reports of the inspection services on inspections carried out outside Lima, particularly in the abovementioned sectors.

Article 2, paragraph 1. Minimum age for admission to employment or work. The Committee previously noted that, under section 51(2) of the Children and Young Persons Code, permission to work could be granted exceptionally to young persons aged 12 or over, provided that the tasks performed do not endanger their health or development or disrupt or restrict their school attendance and enable them to participate in vocational or guidance training programmes. It also noted that, under the terms of section 56 of the Children and Young Persons Code, young persons between 12 and 14 years of age may not work more than four hours per day or 21 hours per week. The Committee noted that, even though these provisions give effect to the Convention by fixing the minimum age for admission to light work at 12 years and prescribe the number of hours of work per day and per week for these types of activity, they do not determine the types of light work. Moreover, the Committee noted the information sent by the Government to the effect that a proposal for defining the concept of light work, determining these types of work and identifying the legal effects thereof was under examination. The Committee expressed the hope that the proposal for determining types of light work being examined by the Government would be adopted in the near future and would take account of the comments referred to above. However, the Committee noted that a draft Act amending the Children and Young Persons Code amends sections 51 and 56 of the Code currently in force, by no longer permitting the employment of persons over 12 years of age in light work. It again expressed the hope that, when adopting the amendments to the Children and Young Persons Code proposed by the draft Act, the Government would take account of the minimum age of 12 years for admission to light work, which would enable the employment of children in these types of work that are performed in reality to be regulated.

The Committee notes the Government’s indication that there is no regulation of light work, that it is left to the discretion of the administrative authority to authorize paid work for children under 14 and over 12 years of age, and that such permission has hardly ever been given. The Government also indicates that the ministry authorizes paid work for children aged 14 years or over and, for the purpose of granting the authorization, the child and the child’s father are summoned in order to check the age and state of health of the child and also the details of the workplace where the child is due to be employed. The ministry checks that the child’s age is not less than 14 years and that the work to be done by the child is not included in the list of hazardous types of work or in the worst forms of child labour established by Convention No. 182. The labour inspectorate verifies observance of the conditions of work, such as hours of work, payment of wages, registration in the social security system, etc., and, if infringements are detected, it imposes the relevant fine. The Committee recalls that, according to the statistics contained in the 2001 report of the National Institute of Statistics and Information Technology entitled “Overview of the work of children and young persons in Peru”, in reality a considerable number of children below 14 years of age are working. In view of the fact that the Government indicates that there is no regulation of light work but that in reality a considerable number of children under 14 years of age are working, the Committee requests the Government to take the necessary steps to ensure that in practice no child under 14 years of age is given permission to work.

Article 2, paragraph 3. Compulsory schooling. In its previous comments the Committee noted that, according to the statistical data contained in the 2001 study entitled “Overview of the work of children and young persons in Peru”, 61.4 per cent of children and young persons enter the labour market without having completed their compulsory schooling. It also noted that, according to 2005 figures from the UNESCO Institute for Statistics, 97 per cent of girls and 96 per cent of boys attend primary school while 70 per cent of girls and boys attend secondary school. It also noted that the Committee on the Rights of the Child (CRC), in its concluding observations on the third periodic report of Peru in March 2006 (CRC/C/PER/CO/3, paragraph 60), noted with satisfaction the active role of school councils and also programmes developed by the Government, especially in the area of pre-primary education. The CRC also welcomed the increase in the completion rate for primary education in Peru. However, it was still concerned at: (i) the lack of regular school attendance at both primary and secondary level, the very high drop-out and repetition rates, and the fact that nearly one in four adolescents (12–17 years of age) has left school, inter alia because of lack of schools; and (ii) the even higher absenteeism and early drop‑out of girls because of traditional views on their place in society and also owing to early pregnancies. The Committee further noted that, according to information contained in the “National plan for the prevention and elimination of child labour (2005–10)”, apart from regular basic education, the Government has established an alternative form of basic education in the form of literacy programmes in more than 26 training centres. Moreover, each of the plan’s five action strategies provides for the adoption of measures to strengthen education. The Committee encouraged the Government to improve the functioning of the education system in the country. It also asked the Government to step up its efforts to combat child labour by reinforcing measures to enable working children and young persons to enter the education system, whether on a formal or informal basis, or engage in vocational training, on condition that minimum age criteria are respected.

The Committee notes that, according to the information sent by the Government, the “Street teachers” programme launched by the Ministry of Women’s Affairs and Social Development caters for working children to enable them to continue with their schooling. In addition, schoolteachers have constant access to information on the problem of child labour, the risks involved and the alternatives to child labour, and also to a support tool for informing young people about child labour and efforts to combat the worst forms of child labour through the SCREAM programme, which is an educational programme for the defence of children’s rights by means of education, the arts and the media. In addition, the PROJOVEN youth training programme has held 11 free training courses for young persons, enabling them to learn an occupation in order to improve their opportunities of employment and increase their income. These courses promote the development of competencies, aptitudes and skills of young persons in order to improve their performance. The young people are provided with courses in areas including carpentry, information technology, administration and trade, car maintenance, hotels and tourism, textiles and clothing, beauty treatment, agriculture, construction, a total of 1,419 young persons in 12 regions having been trained in 2008. The Committee requests the Government to supply information on any other steps taken to extend the coverage of the school system and strengthen its functioning. It also requests the Government to supply information in its next report on the impact of the abovementioned measures and on school attendance at both primary and secondary level, drop-out and repetition rates, and the early drop-out of girls from school.

Article 3, paragraph 2. Hazardous work and determination of types of hazardous work. In its previous comments the Committee noted with interest the adoption of Supreme Decree No. 007-2006-MIMDES, which approves a detailed list of types of work and employment which are hazardous or harmful to the physical or psychological well-being of young persons (persons between 12 and 18 years of age) and which are prohibited for them. The Committee notes that, according to section 2 of Supreme Decree No. 007-2006-MIMDES, the list is valid for two years from the date of entry into force of the Decree. Noting that Supreme Decree No. 007-2006-MIMDES came into force in July 2006 and the period of validity of the list has therefore already expired, the Committee requests the Government to indicate whether a new list of the types of work and activity which are hazardous or harmful to the physical or psychological well‑being of young persons and are therefore prohibited has already been drawn up in consultation with workers’ and employers’ organizations, in accordance with section 58 of the Children and Young Persons Code. If so, the Committee requests the Government to send a copy of any relevant legislative text or draft text.

Article 3, paragraph 3. Admission to hazardous work from the age of 16 years. The Committee previously noted that, under paragraph A.5 of Supreme Decree No. 007-2006-MIMDES, night work between 7 p.m. and 7 a.m. is considered by its nature to be hazardous work and is prohibited. However, it noted that, under section 57 of the Children and Young Persons Code of 2001, night work (work done between 7 p.m. and 7 a.m.) performed by young persons between 15 and 18 years of age may be permitted on an exceptional basis by a judge if it does not exceed four hours per night. The Committee noted the Government’s statement that the Congress of the Republic was examining draft Act No. 064-2006-CR amending the Children and Young Persons Code. One of the proposals of the draft Act is to amend section 57 of the Code to the effect that exceptions to the prohibition on night work laid down by this provision may be authorized by a magistrate or otherwise by the competent authority in respect of young persons from the age of 16 years onwards, and no longer 15 years, on condition that such work does not exceed four hours per night during the period between 7 p.m. and 7 a.m. the Committee reminded the Government that, under Article 3, paragraph 3, of the Convention, the competent authority may, after consultation with the organizations of employers and workers concerned, where such exist, authorize employment or work for young persons as from the age of 16 years on condition that: (1) their health, safety and morals are fully protected; and (2) they have received adequate specific instruction or vocational training in the relevant branch of activity. It therefore expressed the hope that, as part of the examination of draft Act No. 064-2006-CR, the Government would take account of the comments made above and asked it to supply information on the measures taken or contemplated to ensure that permission to employ young persons as from the age of 16 years in work considered to be hazardous – in this case, night work – would only be granted under the conditions laid down by Article 3(3) of the Convention.

The Committee notes the Government’s indication that draft Act No. 064‑2006-CR amending the Children and Young Persons Code is before the Commission for Justice and Human Rights and the Commission for Women’s Affairs and Social Development for revision. The Committee expresses the firm hope that the Government will ensure that measures are taken to ensure that any exceptional authorization of employment or work for young persons as from the age of 16 years by the national legislation or the competent authority, following consultation of the employers’ and workers’ organizations concerned, is only granted under the conditions laid down by this provision of the Convention. The Committee requests the Government to send a copy of any legislative text relating to this area, once it has been adopted.

Article 8. Artistic performances. The Committee previously noted the Government’s information to the effect that regulations adopted under Act No. 28131 of 18 October 2003 on performing artists state that the employment of minors in artistic activities may only be undertaken under the following conditions: the activity must not jeopardize the health or development of the minor, hamper his or her educational development or adversely affect his or her morals. The Government added that the labour administration may prohibit work by a minor in cases where the conditions described above cannot be verified. Noting the Government’s indication that information on this point will be communicated in due course, the Committee again requested the Government to send a copy of the regulations adopted under Act No. 28131 of 18 October 2003 on performing artists and indicate whether these regulations provide for the competent authority to give its authorization in each individual case.

The Committee notes Supreme Decree No. 058-2004-PCM issuing implementing regulations for Act No. 28131 on performing artists, which is attached to the Government’s report. It notes that, according to section 21 of these regulations, the employment of minors in artistic activities must not be harmful to his or her health or development, must not hamper his or her education and must not adversely affect his or her morals. The same section authorizes the labour administration to prohibit young persons from working in cases where the abovementioned conditions are not fulfilled. With regard to minors working on a self-employed basis, it is the district municipalities (which are also responsible for granting permits to children for the purposes of self-employment, in accordance with the Children and Young Persons Code) which have the power to prohibit work done by a minor where the abovementioned conditions are not fulfilled, in accordance with the same section. In this respect, the Committee emphasizes that, under the terms of Article 8(1) and (2) of the Convention, after consultation with the organizations of the employers and workers concerned, where such exist, the competent authority may, by permits granted in individual cases, allow exceptions to the prohibition of employment or work provided for in Article 2 of the Convention, for such purposes as participation in artistic performances. Permits so granted shall limit the number of hours during which and prescribe the conditions in which employment or work is allowed. The Committee requests the Government to supply detailed information on the content of permits issued to minors with respect to their participation in artistic activities pursuant to the national legislation. The Committee also requests the Government to supply information on any consultations held in this regard with the employers’ and workers’ organizations concerned.