Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Spain

Medical Examination of Young Persons (Industry) Convention, 1946 (No. 77) (Ratification: 1971)
Medical Examination of Young Persons (Non-Industrial Occupations) Convention, 1946 (No. 78) (Ratification: 1971)

In order to provide an overview of the issues concerning the application of the main Conventions on the medical examination of young persons, the Committee considers it appropriate to examine Conventions Nos 77 and 78 in a single comment.

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO), received 11 August 2017, and the Government’s report.

Article 2 of Conventions Nos 77 and 78. Thorough medical examination for fitness for employment. In its previous comments, the Committee pointed out that the national legislation contains no provisions requiring young persons under 18 years of age to undergo a thorough medical examination for fitness for work before employment. The Committee also observed that, while the national legislation prohibits workers under 18 years of age from being employed in hazardous work, it does allow minors from 16–18 years of age to be employed under certain conditions in industrial undertakings or non-industrial occupations, as provided for in Article 1 of the Conventions. The Government indicates that, for all activities which could be carried out by young persons under 18 years in industrial undertakings or non-industrial occupations which are not considered inappropriate, unhealthy or hazardous, the employer is required, under section 27 of Act No. 31/1995 on the prevention of occupational risks, before the admission to employment of minors under 18 years of age, to conduct an evaluation of the job in question, covering in particular specific risks for their safety, health and development, taking into account their lack of experience, knowledge and maturity. Under the same Act, on the basis of an assessment of the risks that the job involves for the young person employed therein, the employer must take measures to protect their safety and health, taking into account the specific risks that arise from their lack of experience or maturity regarding risk perception or the fact that they are still developing. These measures are provided for in section 22 of Act No. 31/1995, which requires regular monitoring of workers’ health in light of the risks inherent in their job. Section 25 of the same Act prohibits the employment of workers who, by reason of their personal characteristics, may cause danger to themselves or others. The Committee notes the Government’s indication that the national legislation, which is traditionally more comprehensive and imposes more stringent requirements for the protection of the safety and health of minors, is in conformity with European Council Directive 94/33/CE of 22 June 1994 on the protection of young people at work.

The Committee notes the observations of the CCOO that the job evaluation conducted under section 27 of Act No. 31/1995 on the prevention of occupational risks does not take into account the specific medical circumstances of the minor in question. The CCOO adds that the job evaluation does not ensure that the minors involved are individually found to be fit for work before being admitted to employment, and that the national legislation is therefore not in conformity with Article 2 of the Conventions.

The Committee notes the Government’s indication that, although no specific provision in national law exists establishing that minors from 16–18 years of age must undergo a thorough medical examination for fitness for employment before admission to employment, the national legislation adopts a more comprehensive and rigorous approach to this issue. The Committee notes that national legislation considers safety and health monitoring to be a preventive measure to ensure the safety and health of workers, and requires this monitoring to be commensurate with the risks to which the worker may be exposed. The Government indicates that effective compliance with national legislation may include, but is not limited to, medical examinations. The Committee therefore notes that while these measures may include a thorough medical examination prior to admission to work or employment, it does not seem to be a requirement. The Committee therefore asks the Government to indicate how the evaluation of jobs and their inherent risks established in section 27 of Act No. 31/1995 ensures that minors of 16–18 years of age are recognized as fit for work before entering employment, taking into account the fact that such fitness for work must be assessed through a thorough medical examination.

Article 6 of the Conventions. Vocational guidance and physical and vocational rehabilitation. The Committee notes the observation of the CCOO that the national legislation does not contain any measures to assist minors under 18 years of age to find a new vocation or for their physical and vocational rehabilitation following a medical examination which finds them to be unsuited to certain types of work or to have physical disabilities or limitations. The Committee requests the Government to indicate how, under Article 6 of Conventions Nos 77 and 78, the relevant authorities provide for the vocational guidance and physical and vocational rehabilitation of children and young persons found by medical examination to be unsuited to certain types of work or to have physical disabilities or limitations.