Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Minimum Age Convention, 1973 (No. 138) - Bolivia (Plurinational State of) (Ratification: 1997)

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 104th Session, June 2015)

The Committee notes the Government’s report and also the detailed discussion that took place within the Committee on the Application of Standards at the 104th Session of the International Labour Conference in June 2015 concerning the application of the Convention by the Plurinational State of Bolivia. It also notes the joint observations of the International Organisation of Employers (IOE) and the Confederation of Private Employers of Bolivia (CEPB), which were received on 31 August 2015.

Article 2(1) of the Convention. Minimum age for admission to employment or work. Labour inspection. In its previous comments, the Committee noted that, under section 126(1) of the Children’s and Adolescents’ Code, the minimum age for admission to employment or work was 14 years, and that section 58 of the General Labour Act prohibited work by children under 14 years of age, which was in keeping with the minimum age specified by the Government at the time of ratifying the Convention. The Committee noted the observations submitted by the International Trade Union Confederation (ITUC) concerning the Government’s adoption of the new Children’s and Adolescents’ Code on 17 July 2014, which amends section 129 of the previous Code to lower the working age for children to 10 years for self-employed workers and to 12 years for those in an employment relationship, under exceptional circumstances. The ITUC argued that these exceptions to the minimum age of 14 years are incompatible with the Convention’s exceptions to the minimum age which are permitted for light work under Article 7(4), and which do not permit children under the age of 12 years to work. The Committee also noted the ITUC’s statement that allowing children to work as from the age of 10 years will inevitably affect their compulsory schooling, which in the Plurinational State of Bolivia comprises a 12-year period, namely at least until 16 years of age. The Committee noted the Government’s indication that the new exceptions to the minimum age of 14 years, as set out under section 129 of the Code, can only be registered and authorized on condition that such work does not threaten children’s rights to education, health, dignity or overall development.

The Committee notes the joint observations of the IOE and the CEPB, to the effect that the new Children’s and Adolescents’ Code is the result of an incorrect application of the Convention. They point out that the amendment was undertaken without prior consultation of the employers’ and workers’ organizations and that it goes against the minimum age for admission to work of 14 years, as specified by the Government when ratifying the Convention. The IOE and the CEPB also point out that the high level of the informal economy in the country (70 per cent) favours child labour, since it is not subject to labour inspection. They add that there is no child labour in the formal employers’ sector. Lastly, they state that the Government needs to strengthen inspection services in both the formal and informal sectors.

The Committee notes the statement made by the Government representative of the Plurinational State of Bolivia to the Conference Committee, to the effect that the exceptions to the minimum age for admission to employment established by the new Code are provisional, with a view to overcoming this problem by 2020. He said that the Government was not contravening the Convention but was seeking to broaden protection of child workers, the Code being an exceptional measure that contributed to the application of the public policies aimed at eliminating child labour. He referred to the measures that had been adopted with the aim of protecting children: the right to receive a wage equal to the national minimum wage, the right to social security, the promotion of the right to education, and a 30-hour working week for work carried out for a third party by children between 12 and 14 years of age, including two hours per day devoted to study. The Government also indicates in its report that the Ministry of Labour, Employment and Social Welfare is applying the Convention through integrated, inter-sectoral routine or complaint-based inspections, conducted by the Department for the Protection of Children and Young Persons, to highlight the cases involving work by children under 14 years of age.

The Committee notes that the Conference Committee, while duly noting the positive results of the economic and social policies put in place by the Government, urged the Government to repeal the provisions of the legislation setting the minimum age for admission to employment or work, and to immediately prepare a new law, in consultation with the social partners, increasing the minimum age for admission to employment or work in conformity with the Convention. It also asked the Government to provide the labour inspectorate with more human and technical resources and also to provide training for labour inspectors, with a view to adopting a more efficient and concrete approach to applying the Convention.

The Committee once again deeply deplores the recent amendments to section 129 of the Children’s and Adolescents’ Code, which authorizes the competent authority to approve the work of children and young persons between 10 and 14 years of age on a self-employed basis and the work of children and young persons between 12 and 14 years of age for a third party. The Committee emphasizes once again that the objective of the Convention is to eliminate child labour and that it encourages the raising of the minimum age but does not authorize the lowering thereof, once it has been fixed. The Committee recalls that the Plurinational State of Bolivia fixed a minimum age of 14 years at the time of ratifying the Convention, and that the exceptions to the minimum age for admission to work or employment under the terms of section 129 of the Children’s and Adolescents’ Code are not in conformity with this provision of the Convention. Furthermore, the Committee notes with deep concern the distinction made between the minimum age for self-employed children, fixed at 10 years, and the minimum age for children engaged in an employment relationship, fixed at 12 years. As the Committee noted in its 2012 General Survey on the fundamental Conventions (paragraphs 550 and 551), it is of the firm view that self-employed children should enjoy at least the same legal protection, especially as many of them work in the informal economy and under dangerous conditions. Lastly, the Committee observes that, further to its 2012 comments on the Labour Inspection Convention, 1947 (No. 81), the Government indicates that there are 86 chief inspectors and labour inspectors (Article 10). The Committee observes that, according to the 2012 General Survey (paragraph 345), the limited number of labour inspectors has made it difficult for them to cover the whole of the informal economy and agriculture. The Committee therefore calls on governments to strengthen the capacity of the labour inspectorate to address child labour in the informal economy. The Committee therefore strongly urges the Government to take immediate steps to ensure that section 129 of the Children’s and Adolescents’ Code of 17 July 2014 fixing the minimum age for admission to employment or work, including own-account work, is amended, in order to align this age to the one specified at the time of ratification, namely a minimum of 14 years, and bring it into conformity with the provisions of the Convention. It also requests the Government to take the necessary steps to reinforce the capacity of the labour inspectorate, particularly by increasing the number of inspectors and their technical capacities with regard to child labour, so as to ensure that the protection afforded by the Convention is also enjoyed by children working in the informal economy.

Article 7(1) and (4). Light work. The Committee previously noted that sections 132 and 133 of the Children’s and Adolescents’ Code of 17 July 2014 permit children under the age of 14 years to work, subject to due authorization by the competent authority, under conditions which limit their working hours, do not endanger their life, health, integrity or image and do not interfere with their access to education.

The Committee notes the conclusions of the Conference Committee, according to which these amendments permit all children under 14 years of age to carry out light work without fixing a lower minimum age for admission to such work. The Committee recalls that, under the flexibility clauses in Article 7(1) and (4) of the Convention, national laws or regulations may permit the employment or work of persons between 12 and 14 years of age in light work which is not likely to be harmful to their health or development, and not such as to prejudice their attendance at school, their participation in vocational guidance or training programmes approved by the competent authority or their capacity to benefit from the instruction received. The Committee notes, however, that sections 132 and 133 of the Children’s and Adolescents’ Code do not set a lower minimum age of 12 years, as required by Article 7(4). The Committee once again urges the Government to take immediate measures to ensure that sections 132 and 133 of the Children’s and Adolescents’ Code of 17 July 2014 are amended in order to establish a lower minimum age of 12 years for admission to light work, in accordance with Article 7(1) and (4) of the Convention.

Article 9(3). Keeping of registers. In its previous comments, the Committee noted that the national legislation did not contain provisions giving effect to the employer’s obligation to keep registers. The Committee also noted that, pursuant to section 138 of the Children’s and Adolescents’ Code, registers for child workers are now required in order to obtain authorization for such work. The Committee observed that these registers include authorization for children between 10 and 14 years of age to work.

The Committee notes that there is no information on this subject in the Government’s report. It draws the Government’s attention to its comments under Article 2(1), according to which authorization to work should not be granted for children below the age of 14 years. Furthermore, it reminds the Government that, in accordance with Article 9(3), national laws shall prescribe the registers which shall be kept and made available by the employer containing the names and ages or dates of birth, duly certified, of persons whom he/she employs or who work for him/her and who are less than 18 years of age. The Committee therefore requests the Government to take the necessary steps to bring this provision of the Children’s and Adolescents’ Code into conformity with the Convention on these two points, and to provide recent statistics on child labour, disaggregated by age and sex.

The Committee invites the Government to avail itself of ILO technical assistance in order to bring its law and practice into conformity with the Convention.

The Committee is raising other points in a request addressed directly to the Government.