Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

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 on 20 August 2019. It also notes the observations of the General Union of Workers (UGT) contained in the Government’s report, and the Government’s reply to these observations.

Article 2 of Conventions Nos 77 and 78. Thorough medical examination for fitness for employment. In its previous comments, the Committee requested the Government to indicate how the evaluation of jobs and their inherent risks, provided for in section 27 of Act No. 31/1995 on the prevention of occupational risks (LPRL), ensures that minors of 16 to 18 years of age are recognized as fit for work before entering employment.

The Committee notes the observations of the CCOO that the job evaluation conducted under section 27 of the LPRL 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 indications that the employer is required to conduct a job evaluation before the admission to employment of minors of 16 to 18 years of age, paying particular attention to the specific risks of the post for the safety, health and development of young persons and taking into account their lack of experience, knowledge and maturity, in accordance with section 27 of the LPRL.

The Committee also notes the Government’s indications that, based on the evaluation results, the employer is required to plan preventive action and adopt any measures necessary to ensure the aptitude of the worker for the performance of their work, and to avoid or reduce the risks to which they may be exposed. These measures include: (i) the requirement to monitor workers’ health in light of the risks inherent to the job (in accordance with article 22 of the LPRL). Medical supervision is specific and regular and addresses the risks inherent to the job, and can be carried out before entering employment and may even be mandatory for the worker; (ii) the prohibition on employing workers who, by reason of their personal characteristics, may endanger themselves or others (in accordance with article 25 of the LPRL); (iii) with regard to minors of 16 to 18 years of age, the employer is required to evaluate the job before engaging such persons and to take appropriate measures to demonstrate their capacity to perform the tasks inherent to the post. These measures include health monitoring, which in turn includes, inter alia, medical examinations.

The Committee also notes the Government’s statement that although no specific provision of national law exists establishing the requirement for minors of 16 to 18 years of age to undergo a medical examination for fitness for employment before admission to employment, the national legislation in Spain adopts a more comprehensive and rigorous approach to this issue. It considers safety and health monitoring of workers to be a preventive measure, and requires this monitoring to be commensurate with the risks to which the workers are likely to be exposed. Effective compliance with national legislation may include, but is not limited to, medical examinations.

The Committee notes the Government’s indications that the national legislation is in conformity with European Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work. Similarly, article 96 of the Spanish Constitution provides that “validly concluded international treaties, once officially published in Spain, shall be part of national law” and section 1(5) of the Civil Code states that “legal norms contained in international treaties shall have no direct application in Spain until they have become part of the national legal system through their publication in full in the Official Gazette”. Therefore, the Government emphasizes that, taking into account that ILO Convention No. 77 of 1946 was ratified on 8 April 1971 and published in the Official Gazette (BOE) on 20 May 1971, it constitutes a direct source of law because it has been incorporated in part into current Spanish statutory law.

The Committee takes due note that the National Plan for Decent Work 2018–20, approved by the Government at the Council of Ministers held on 27 July 2018, has become the main tool for empowering the labour and social security inspectorate. This plan takes into account the vulnerability of minors of 16 to 18 years of age as potential victims of abuse in the workplace.

The Committee notes the statistics provided in the labour and social security inspection reports for 2016–18. These statistics cover the protection and health of minors, indicating the number of violations detected, the number of minor workers affected and the penalties imposed. The Committee notes that the number of labour inspections decreased between 2016 and 2018 (from 279,048 to 266,718) and that the number of detected violations concerning children of 16 to 18 years of age increased in industrial occupations (from five to 16) and decreased in non-industrial occupations (from 21 to six). There were no violations detected in industrial and non-industrial occupations concerning children under 16 years of age in 2016–18. The Commission requests the Government to provide information on the number of minors from 16 to 18 years of age who are recognized as fit for employment and have undergone a thorough medical examination prior to their recruitment, specifying, in each case, the employment concerned.

Article 6. Vocational guidance and physical and vocational rehabilitation. In its previous comments, the Commission requested the Government to indicate how, under Article 6 of Conventions Nos 77 and 78, the competent authorities provide for the vocational guidance and physical and vocational rehabilitation of children and young persons found by medical examinations to be unsuited to certain types of work, or to have physical disabilities or limitations.

The Committee notes the Government’s indication that Royal Legislative Decree No. 1/2013 of 29 November, which approves the consolidated text of the General Act on the rights of persons with disabilities and their social inclusion, defines comprehensive care as a set of processes that aim to enable persons with disabilities to acquire a maximum level of personal development and autonomy, to attain and maintain maximum independence, their physical, mental and social capacities and full participation and inclusion in all aspects of life, and to obtain suitable employment. Comprehensive care programmes can include physical rehabilitation and re-education and psychological care, treatment and counselling, in addition to education and vocational support. Government administrations ensure that adequate comprehensive care services are provided by various public bodies.