Medical Examination of Young Persons (Industry) Convention, 1946 (No. 77) - Spain (Ratification: 1971)

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

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.

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

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.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee takes note of the Government’s report. It also notes the comments by the Trade Union Confederation of Workers’ Commissions (CCOO) of 21 August 2012.

Article 2 of the Convention. Thorough medical examination for fitness for employment. In its previous comments, the Committee has pointed out that the national legislation contains no provision establishing that minors under 18 years of age must undergo a thorough medical examination for fitness for employment before being employed. The Committee also observed that while Spain’s national legislation prohibits workers under 18 years of age from being employed in hazardous work, it does allow minors over 16 years of age to be employed under certain conditions in enterprises covered by Article 1 of the Convention. The Committee asked the Government to indicate how the appraisal of posts and their inherent risks established made it possible to ensure that minors of 16–18 years shall be recognized as fit for work before entering employment, taking into account the fact that such fitness for work shall be recognized by a thorough medical examination.

The Committee notes the comments of the CCOO which point out that national legislation obliges the employer, before a minor takes up employment, to carry out a complete and detailed examination of the position in question taking into account all risks, in particular those relating to safety and health, and those arising from their level of development, immaturity and lack of experience to evaluate existing and potential risks.

In its report, the Government reiterates that, section 6(1) of Legislative Decree No. 1/1995 of 24 March 1995, approving the revised text of the Act on the statute of workers, provides that it is forbidden to admit minors under 16 years of age to employment. It also indicates that section 6(2) prohibits workers under 18 years of age from performing night work and any activity deemed insalubrious or hazardous for their health. In addition, the Decree of 26 July 1957, which regulates prohibited work, provides that girls and boys under 18 years of age may not be employed in the types of hazardous work listed in the Decree. The Government indicates that the prohibitions in this regard for the majority relate to work carried out in industrial undertakings as defined in Article 1(2) of the Convention, in particular, mines, quarries and other works for the extraction of minerals, undertakings engaged in building and civil engineering work and undertakings engaged in the transport of passengers or goods.

The Government furthermore states that for all other activities which may be carried out by minors under 18 years in industrial undertakings, because they are not considered inadequate, insalubrious or hazardous, the employer must, by virtue of section 27 of Act No. 31/1995 on the prevention of occupational risks, before assigning a minor under 18 years of age to a job, conduct an appraisal of the post in question, and the appraisal must cover in particular special risks for their safety, health and development that may arise from a lack of experience, knowledge or maturity. According to the same Act, on the basis of an assessment of the risks that the job involves for the young person assigned to it, the employer must take measures to protect the latter’s safety and health, taking into account the specific risks that arise from lack of experience and from immaturity in terms of awareness of the risks or the fact that the young person is still developing. These measures include section 22 of Act No. 31/1995 which requires periodic monitoring of workers’ health in light of the risks inherent in the job. Section 25 of the same Act prohibits the employment of workers who, due to their personal characteristics, can cause danger to themselves or others.

The Committee takes note of the Government’s statement that although no specific provision in national law exists establishing that minors under 18 years of age must undergo a thorough medical examination for fitness for employment before being employed, Spain’s national legislation adopts a more comprehensive and rigorous approach in this regard. The Committee notes the Government’s explanations that national legislation perceives safety and health monitoring as a preventive measure to ensure the safety and health of workers, requiring that this surveillance be adequate to the risks to which the worker may be exposed. These surveillance measures may include medical examinations, but the effective compliance with national legislation is not limited to them. The Committee notes the Government’s indication that Spain’s national legislative tradition of a larger concept and more stringent requirements for the safety and health protection of minors are in line with the European Council Directive 94/33/CE of 22 June 1994 on the protection of young people at work.

The Committee also takes due note of the statistics provided by the Government on the basis of the reports from the labour and social security inspectorate for 2007–11 in the field of safety and health protection for minors specifying the breaches committed in the various industries, the number of the offences reported, the number of workers affected and the penalties applied. The Committee notes that while the number of visits increased between 2007 and 2011, the number of offences reported declined from 39 in 2007 to nine in 2010.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s report.

Article 2 of the Convention. Thorough medical examination for fitness for employment. In the comments that it has been making for several years, the Committee has pointed out that the national legislation contains no provision establishing that minors under 18 years of age must undergo a thorough medical examination for fitness for employment before being employed. The Government indicated that Article 2 of the Convention is applied, inter alia, by the provisions of section 37(3) of Royal Decree No. 39 of 17 January 1997 on occupational health services and section 22 of Act No. 31/1995 on the prevention of occupational risks. The Committee observed that it could not be inferred from the abovementioned provisions that a thorough medical examination was a requirement for a worker to be employed, and asked the Government to take steps to bring its legislation into conformity with the Convention.

In its report, the Government states that, section 6(1) of Legislative Decree No. 1/1995 of 24 March 1995, approving the revised text of the Act on the statute of workers, provides that it is forbidden to admit minors under 16 years to employment. It also indicates that section 6(2) prohibits workers under 18 years of age from performing night work and any activity deemed insalubrious or hazardous for their health. The Government indicates in this connection that the Decree of 26 July 1957, which regulates prohibited work, provides that girls and boys under 18 years of age may not be employed in the types of hazardous work listed in the Decree. It also refers to section 27(1)(1) of Act No. 31/1995 on the prevention of occupational risks under which, before assigning minors under 18 years of age to a job, the employer must conduct an appraisal of the posts to which workers are to be assigned, and the appraisal must cover in particular special risks for their safety, health and development that may arise from a lack of experience, knowledge or maturity. The Government likewise refers to section 27(1)(2) of Act No. 31/1995 which provides that, on the basis of an assessment of the risks that the job involves for the young person assigned to it, the employer must take steps to protect the latter’s safety and health, taking into account the specific risks that arise from lack of experience and from immaturity in terms of awareness of the risks or the fact that the young person is still developing. According to the Government, since under Spanish law it is forbidden for young persons under 16 years of age to work (section 6 of Legislative Decree No. 1/1995 of 24 March 1995), since the list of types of hazardous work prohibited for minors under 18 years of age has been drawn up (Decree of 26 July 1957) and since all workers are entitled to have their health protected (section 22 of Act No. 31/1995), no one under 18 years of age may carry out hazardous work. It follows that a specific medical examination for fitness for employment for minors under 18 years of age cannot be established for work which they are prohibited by law from carrying out.

While taking due note of the Government’s information, the Committee observes that Spain’s national legislation allows minors over 16 years of age to be employed under certain conditions (section 3 of the Decree of 26 July 1957 and section 2 of the Ordinance of 28 January 1958). Noting the statistics of breaches of the safety and health protection for minors of 16–18 years in the industries reported by the inspectorate for labour and social security for the years 2001–05, the Committee observes that the possibility does exist for minors to work in enterprises covered by the Convention (Article 1). It accordingly asks the Government to indicate how the appraisal of posts and their inherent risks established in section 27(1)(1) and (2) of Act No. 31/1995 makes it possible to ensure that minors of 16–18 years shall be recognized as fit for work before entering employment, taking into account the fact that such fitness for work shall in any event be recognized by a thorough medical examination. Noting that the abovementioned statistics do not specify the types of breaches committed in the various industries, the Committee requests the Government to continue to provide information on the practical effect given to the Convention including, for example, data on the number and nature of the offences reported and the penalties applied.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note of the Government’s report. It notes the detailed information sent in reply to its previous comments, particularly that regarding domestic work in families. The Committee also notes the explanations given by the Government concerning the comments made by the Trade Union Confederation of Workers’ Commissions (CC.OO).

Article 2 of the Convention. In the comments it has been making for a number of years, the Committee has referred to the absence of provisions establishing that minors must undergo a medical examination for fitness for employment before being employed. In its previous comments, the Committee again asked the Government to examine the problems caused by this inconsistency between national legislation and practice and the Convention and to take the necessary steps to bring its legislation and practice into conformity with the Convention.

The Committee notes that, according to the Government, no new or amended laws or regulations concerning the application of the Convention have been adopted. It notes that, to the explanations provided in earlier reports, the Government adds that Article 2 of the Convention is applied inter alia by the provisions of section 37(3) of Royal Decree No. 39 of 17 January 1997 on occupational health services. The Committee observes, however, that this provision deals with high-level supervision and control of workers’ health by the occupational health services. It establishes that workers undergo, on the orders of the occupational health services and at the hands of a physician specializing in occupational medicine or a company doctor and a holder of an "ATS/DUE", a medical examination before recruitment (subsection b(1)) and further medical examinations in the course of employment (subsection b(3)). The medical examinations are conducted according to conditions laid down in section 22 of Act No. 31/1995 on the prevention of occupational risks. As the Committee has observed in previous comments, section 22(1) of that Act provides that the medical examination may be carried out only at the worker’s request or with the worker’s consent, except when such an examination is required in order to assess the effects of working conditions on the health of workers, or to establish whether the worker’s state of health may constitute a danger for him or her, for the other workers, or for other persons having a connection with the enterprise. The Committee therefore concludes that there is no express provision in section 37(3) of Royal Decree No. 39/1997, read in conjunction with section 22 of Act No. 31/1995, for a thorough medical examination of workers to be required before they are employed, as this Article of the Convention prescribes.

The Committee also notes that, according to the Government, section 13(2) of Legislative Decree No. 5 of 4 August 2000 issuing provisions on offences and penalties in the area of social protection includes among the most serious breaches of the law failure to respect provisions concerning protection of the occupational safety and health of minors. The Government adds that this provision is an integral part of the occupational health and standards system, the hub of which is Act No. 31/1995 on the prevention of occupational risks, which incorporates in the national legislation European Directive 94/33 of 22 June 1995 on the protection of young people at work. The Committee again points out, in this context, that section 27 of Act No. 31/1995 on risk prevention at work provides, in its first paragraph, that, before assigning minors under 18 years of age to a job, employers must carry out an appraisal of the posts to which they are to be assigned, focusing particularly on the specific risks to the safety, health and development of young people which may arise out of their lack of experience, their lack of knowledge or their lack of maturity. This means that the employer must take measures, on the basis of an assessment of the risks that the work involves for the young people who are to perform it, to protect their safety and health, taking account of the specific risks arising out of their lack of experience, their unawareness of hazards or their incomplete development. The Committee can only repeat what it has already pointed out in this connection: first, the measures to be taken under the relevant legislation must be adapted to the nature of the risks inherent in the work; secondly, the medical examination prior to employment specified in the Convention concerns the persons expressly referred to therein - namely children and young people under 18 years of age - the aim being to certify their fitness for a specific job, whereas the risk evaluation provided for in the abovementioned Act concerns the type of work to be performed and is therefore limited to the risks inherent in the work.

Consequently, the Committee is bound to point out that no provisions of the national legislation cited by the Government provide expressly for a compulsory thorough medical examination prior to employment, in order to give effect to Article 2 of the Convention. Recalling once again that it is of vital importance that all minors should undergo a medical examination for admission to employment, the Committee trusts that the necessary measures will be duly taken as soon as possible to bring the law and practice into line with the requirements of this Articleof the Convention. The Committee hopes that the Government’s next report will contain information on progress made in this respect.

With regard to the CC.OO’s comments on the absence of provisions establishing that minors from 16 to 18 years of age must undergo a thorough medical examination prior to employment, the Committee notes that the Government refers, mutatis mutandis, to the explanations mentioned above. The Committee is therefore bound to note once again that there are no provisions requiring young persons under 18 years of age to undergo a thorough medical examination before being admitted to employment. It therefore asks the Government to take the necessary steps to bring its legislation into line with the provisions of Article 2, paragraph 1, of the Convention.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information sent in the Government’s report and the information supplied in answer to its previous comments. It notes the observation from the Trade Union Confederation of Workers’ Commissions (CC.OO.) concerning the lack of consistency between the national legislation and the provisions of the Convention.

1.  Article 2 of the Convention.  For a number of years the Committee has been drawing the Government’s attention to the absence of provisions establishing that minors must undergo a medical examination for fitness for employment before being hired. In its previous comments the Committee asked the Government once again to examine the problems arising from this inconsistency between the legislation and practice and the Convention and to take the necessary steps to bring its legislation and practice into line with the provisions of the Convention.

In its reply the Government refers to articles 42.2 and 43 of the Constitution, in which the rights of all workers regarding occupational safety and health are established in a general manner. It also refers to section 4(2)(d) of the Act issuing the Workers’ Statute, as amended, which confers on workers the right to have their physical integrity respected and to an adequate health and safety policy. The Government further indicates that Act No. 31/1995 on risk prevention at work incorporates into domestic law European Directive 94/33 of 22 June 1994 concerning the protection of young people at work. In this connection the Committee notes that section 27 of Act No. 31/1995 on the prevention of risks at work provides, in its first paragraph, that, before assigning minors under 18 years of age to a job, employers must carry out an appraisal of the posts to which they are to be assigned, focusing particularly on the specific risks to the safety, health and development of young people which may arise from their lack of experience, their lack of knowledge or their lack of maturity. Furthermore, section 22(1) of the above Act provides that the medical examination may be carried out only at the request of the worker or with the worker’s consent, except when such an examination is required in order to assess the effects of working conditions on the health of workers or to establish whether the worker’s state of health may constitute a danger for him or her, for the other workers or for other persons having a connection with the enterprise. The Committee notes in this connection the Government’s statement that Act No. 31/1995 on the prevention of risks at work embodies the new preventive concept of occupational safety and health, namely that, on the basis of an evaluation of the risks that the work involves for the young people who are to perform it, the employer must take measures to protect their safety and health, taking account of the specific risks arising out of their lack of experience, their unawareness of hazards or their incomplete development. The Committee notes first that the measures to be taken depend on the nature of the dangers inherent in the work. Secondly, it recalls that the medical examination prior to employment specified in the Convention concerns the persons expressly referred to - namely children and young people under 18 years of age - the aim being to certify their fitness for a specific job, whereas the risk evaluation provided for in the abovementioned Act concerns the type of work to be performed and is therefore limited to the risks inherent in the work. Finally, the Committee notes section 196(1) of Legislative Decree No. 1/1999 to amend the General Social Security Act, which provides for medical examinations prior to hiring and periodic examinations for jobs involving a risk for the worker of contracting an occupational illness. However, section 6(2) of the Act issuing the Workers’ Statute prohibits the employment of minors in jobs falling within the scope of section 196(1) of the abovementioned Legislative Decree.

The Committee observes that no provision expressly requires a thorough medical examination prior to employment, which is necessary for full effect to be given to Article 2 of the Convention. Recalling that it is of vital importance that all minors should undergo a medical examination for admission to employment, the Committee again expresses the hope that the necessary measures will be taken as soon as possible to bring the law and practice into conformity with the requirements of this Article of the Convention.

2.  Article 2(1).  The Committee notes that section 3(4) of Act No. 31/1995 on risk prevention at work excludes work in family enterprises from the scope of the Act. It notes that the Government confines itself to stating that the contractual relationship of minors engaged in activities in family enterprises is governed by Legislative Decree No. 1424/1985, section 13 of which establishes the obligation to respect safety and health. The Committee recalls that Article 2(1) of the Convention requires a medical examination for admission to employment for all children and young people regardless of the type of work contract. It hopes that the Government will take the necessary measures as soon as possible to ensure that the obligation to carry out a medical examination for fitness for employment is extended to minors working in industrial family enterprises.

3.  The Committee notes the observations made by the CC.OO. Noting that section 6(1) of the Workers’ Statute, as amended by Legislative Decree No. 1/1995 of 24 March, establishes that the minimum age for admission to employment is 16 years, it observes that there is no provision in Spain’s legislation for any type of medical examination for the admission to employment of young people between 16 and 18 years of age. Furthermore, the legislation draws no distinction between work in industrial enterprises and occupations in other sectors of activity. According to the CC.OO., in these respects the legislation is in obvious breach of the Convention, particularly its core provisions, namely Article 2(1) regarding the medical examination for admission to employment, and Article 3(1) of the Convention, regarding the medical supervision of young persons until they have attained the age of 18 years. The CC.OO. asks the Government to take the necessary measures to bring national law and practice into conformity with the provisions of the Convention. The Committee observes that the CC.OO. has been making similar comments since 1991 and again requests the Government to provide information on all the points raised in the abovementioned comments.

[The Government is asked to report in detail in 2002.]

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information supplied by the Government in its report. It also notes the comments made by the Trade Union Federation of Workers' Commissions (CC.OO).

1. Article 2 of the Convention. In its previous comments, the Committee noted that a number of provisions of the national legislation had fallen into abeyance, that there is no provision explicitly establishing the obligation of a thorough medical examination for fitness for work for the admission to employment of young persons, and it requested the Government to examine once again the problems raised in law and practice in the light of the Convention and to take the necessary measures to bring them into conformity with the provisions of this instrument.

In its reply, the Government reiterates in particular that, from the date of its publication, the Convention forms part of national legal provisions, which constitutes a legislative basis for the obligations contained in the instrument. It also notes that collective agreements have force of law, in conformity with Article 37(1) of the national Constitution and regulated in Title III of the Workers' Charter. Act No. 8/88 of 7 April 1988, respecting offences against the social order, and the related sanctions, gives legal guarantees for the application of such agreements, both in respect of petitions for their compliance before the bodies with jurisdiction in social matters, and of requiring the supervision of conformity with the terms and conditions of employment agreed therein. Finally, the Government points out that most of the types of employment covered by the Convention are prohibited for young persons under 18 years of age, in accordance with the Decree of 26 July 1957.

The Committee notes that Act No. 31/1995 on Prevention of Occupational Risks provides that, prior to the admission to employment of persons under 18 years of age, employers have to undertake an evaluation of the jobs in which they are to be engaged; this evaluation has to take into account, in particular, the specific risks for the safety, health and development of young persons which may arise out of their lack of experience, lack of awareness and incomplete development. This Act also stipulates that health supervision may only be carried out when requested by the worker, or when the worker gives consent, although an exception to this voluntary nature of health supervision will be made in cases in which such examinations are essential to evaluate the impact of conditions of work on the health of workers, or to verify whether the state of health of the worker may constitute a danger for the worker, for other workers or for other persons in relation with the enterprise.

The Committee notes that this Act does not provide explicitly for the obligation to carry out a thorough medical examination of the fitness for employment of young persons, which is necessary to give full effect to paragraph 1 of this Article of the Convention. The Committee hopes that necessary measures will be taken to bring the legislation and practice into conformity with the Convention.

2. Article 1, paragraph 1. In its report for the period ending 30 June 1991, the Government stated that young persons who are not engaged on account of an employer, including those who, without having the status of employees, are engaged in activities in family enterprises, are excluded from the scope of the provisions respecting medical examinations. The Committee hopes that in the final stage of the formulation of the draft legislation for the prevention of occupational risks, the Government will take the necessary measures to ensure that the obligation to carry out a medical examination for fitness for employment will be extended to young persons working in industrial family enterprises.

3. The Committee noted the observations made by the CC.OO which have been transmitted to the Government, in which the CC.OO alleges that the national legislation provides for no type of medical examination for the admission to employment of young persons under the age of majority, and that as a result no medical examination is usually carried out in practice for these workers. According to the CC.OO, Article 3, paragraphs 1 and 2, of the Convention are not applied in respect of the medical supervision of fitness for employment of young persons until they have attained the age of 18 years and the repetition of the medical examination each year. Article 3, paragraph 3, is not applied with respect to the determination in national laws or regulations of the special circumstances in which a medical re-examination shall be required in addition to the annual examination in order to ensure effective supervision in respect of the risks involved in the occupation. The Committee requests the Government to keep it informed with regard to all the matters raised in the above comments.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

I. Article 2 of the Convention. In its previous comments, the Committee noted the allegations made by the General Workers' Union (UGT) and the Trade Union Confederation of Workers' Commissions (CC.OO), stating that the Convention lacks legal coverage in the country; that, in practice, verification as to whether the young person has been considered fit for work by a qualified physician is not required; that the authority competent for sending the document attesting fitness for employment of the young person and defining conditions of work, had not been determined.

The Committee noted the indications of the Government according to which the medical attestation for young persons working in industrial activities is required in some cases by the relevant labour ordinances, the Act on the hiring of labour of 1944 (section 178) and Decree No. 1036 of 1959 and its Regulations. The fitness for work of young persons is attested by means of an "optional certificate" issued by the corresponding medical practitioner. It also indicates that the requirement of medical examinations is established more specifically in certain collective agreements. The Government also referred to the Bill on occupational health, and indicates that medical examinations are to be carried out when the worker so requests or gives his consent.

The Committee noted the comments made by the General Workers' Union (UGT) in 1992, in which the Union reiterated that the general provisions on this subject do not ensure adequate protection for young people and that the collective agreements on their own do not offset this inadequacy. For its part, the Trade Union Confederation of Workers' Commissions (CC.OO) indicated that non-observance of the Convention is particularly serious in Spain in view of the high rate of unemployment in the country, especially among young people, and that the Bill on occupational health, makes no mention of the medical examination of young persons.

The Committee observed that the Act on the hiring of labour of 1944 which provided, in section 178, that the medical examination of young persons was compulsory, was repealed by Act No. 8 of 1980 issuing the Workers' Charter. In this connection, the Government stated that the Act on the hiring of labour may continue to be partly applied as a regulation under final provision No. 4 of the Workers' Charter which establishes that provisions of laws that regulate matters not covered by the Charter itself shall remain in force as regulations.

The Committee also noted from the comments made by the two above-mentioned trade union organizations that it is not clear which national laws give effect to the requirements of the Convention and that in practice, the provisions of the Convention are not applied. In its opinion, the fact that there is no obligation explicitly laid down in recent laws and that there is uncertainty as to whether section 178 and the requirement laid down in it apply may well be linked to the fact that the requirement of the Convention is not observed in practice. Moreoever, it is symptomatic that the texts of the various collective agreements supplied by the Government contain provisions on annual medical examinations for all workers; none of them refers to the medical examination for the admission of young people to employment.

The Government also refers to section 6, II(a), of Decree No. 1036 to reorganize enterprise medical services, under which it is a function of company doctors to provide medical attestation for admission to employment for the purpose, inter alia, of establishing fitness. The Committee draws the Government's attention to the fact that, in accordance with the Convention, the requirement of a detailed medical examination in order to attest fitness for the employment of young persons must be explicitly established. Such examination is particularly important in order to ensure the special and specific protection that the Convention affords to this category of worker.

The Committee asked the Government to examine the issues that have been raised in the light of the Convention and to inform it on the measures taken or under consideration to ensure the observance thereof. The Committee expressed the hope that the adoption of the Act on occupational health would make it possible for the national legislation and practice to be brought into line with the Convention.

Article 1, paragraph 1. In earlier comments the Committee asked the Government to take the necessary measures to apply the provisions concerning the medical examination for fitness for employment to young persons who, without being wage earners are employed in family undertakings, as provided for in the Convention. In this connection, the Committee noted that the General Workers' Union (UGT) has stressed in its comments the absolute lack of protection of these young persons who are not covered by the regulations on occupational health.

In this respect, the Government indicated that it actually admits that young persons who are not engaged on account of an employer are excluded from the scope of the provisions on medical examination.

The Committee hopes that when the necessary measures are taken to give statutory effect to the requirement of a medical examination for fitness for employment, such requirement will be extended to young persons working in family industrial undertakings.

II. The Committee notes the comments of the Trade Union Confederation of Workers' Commissions (CC.OO) of 21 October 1993 which have been supplied to the Government, which alleged once more that the Convention was not being applied at all. According to the organization referred to, the Government often raises in its defence the regulations on medical examination to prevent occupational diseases (p. e.g., section 191 of the consolidated text on social security and regulations for development), but these examinations apply only to undertakings that have a risk of occupational disease and are not applicable to the majority of sectors and undertakings as required by the Convention. The Committee requests the Government to supply information on all the points raised in the observation.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Article 2 of the Convention. 1. The Committee noted the allegations made by the General Workers' Union (UGT) and the Trade Union Confederation of Workers' Commissions (CC.OO), in 1991, supplied by the Government, stating that the Convention lacks legal coverage in the country; that, in practice, verification as to whether the young person has been considered fit for work by a qualified physician is not required; that the authority competent for sending the document attesting fitness for employment of the young person and defining conditions of work, has not been determined.

The Committee asked the Government to submit comments on this matter.

The Committee notes that in its report the Government indicates that the medical attestation for young persons working in industrial activities is required in some cases by the relevant labour ordinances, the Act on the hiring of labour of 1944 (section 178) and Decree No. 1036 of 1959 and its Regulations. The Government adds that the fitness for work of young persons is attested by means of an "optional certificate" issued by the corresponding medical practitioner. It also indicates that the requirement of medical examinations is established more specifically in certain collective agreements. The Government also refers to the Bill on occupational health, and indicates that medical examinations are to be carried out when the worker so requests or gives his consent.

The Committee notes the comments made by the General Workers' Union (UGT) in 1992, in which the Union reiterates that the general provisions on this subject do not ensure adequate protection for young people and that the collective agreements on their own do not offset this inadequacy. For its part, the Trade Union Confederation of Workers' Commissions (CC.OO) indicates that non-observance of the Convention is particularly serious in Spain in view of the high rate of unemployment in the country, especially among young people, and that the Bill on occupational health, currently being debated, makes no mention of the medical examination of young persons.

The Committee observes that the Act on the hiring of labour of 1944 which provided, in section 178, that the medical examination of young persons was compulsory, was repealed by Act No. 8 of 1980 issuing the Workers' Charter. In this connection, the Government states that the Act on the hiring of labour may continue to be partly applied as a regulation under final provision No. 4 of the Workers' Charter which establishes that provisions of laws that regulate matters not covered by the Charter itself shall remain in force as regulations.

The Committee notes from the comments made by the two above-mentioned trade union organizations that it is not clear which national laws give effect to the requirements of the Convention and that in practice, the provisions of the Convention are not applied. The Committee tends to consider that the fact that there is no obligation explicitly laid down in recent laws and that there is uncertainty as to whether section 178 and the requirement laid down in it apply may well be linked to the fact that the requirement of the Convention is not observed in practice. The Committee also observes that the texts of the various collective agreements supplied by the Government contain provisions on annual medical examinations for all workers; none of them refers to the medical examination for the admission of young people to employment.

The Government also refers to section 6, II(a), of Decree No. 1036 to reorganize enterprise medical services, under which it is a function of company doctors to provide medical attestation for admission to employment for the purpose, inter alia, of establishing fitness. The Committee draws the Government's attention to the fact that, in accordance with the Convention, the requirement of a detailed medical examination in order to attest fitness for the employment of young persons must be explicitly established. Such examination is particularly important in order to ensure the special and specific protection that the Convention affords to this category of worker.

The Committee asks the Government to examine the issues that have been raised in the light of the Convention and to inform it on the measures taken or under consideration to ensure the observance thereof. The Committee hopes that the adoption of the Act on occupational health will make it possible for the national legislation and practice to be brought into line with the Convention.

2. Article 1, paragraph 1. In earlier comments the Committee asked the Government to take the necessary measures to apply the provisions concerning the medical examination for fitness for employment to young persons who, without being wage earners are employed in family undertakings, as provided for in the Convention. In this connection, the Committee notes that the General Workers' Union (UGT) has stressed in its comments the absolute lack of protection of these young persons who are not covered by the regulations on occupational health.

In its report, the Government admits that young persons who are not engaged on account of an employer are excluded from the scope of the provisions on medical examination.

The Committee hopes that when the necessary measures are taken to give statutory effect to the requirement of a medical examination for fitness for employment, such requirement will be extended to young persons working in family industrial undertakings.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

1. The Committee notes the information provided by the Government in its latest report; it also notes Ministerial Order of 18 October 1989 which removes the systematic radiological examination in the preventive health examinations. The Committee also notes with interest the information concerning a draft Royal Decree to prevent diseases and to promote health education which, according to the Government's report, provides for minimum common aims and objectives in relation to occupational health, medical supervision of workers to detect general risk factors, in particular for workers exposed to a special risk given their biological conditions (including young persons under the age of 18). The Committee hopes that this Decree will extend such medical supervision to children and young persons who, without being wage earners are employed in family undertakings, as provided for by Article 1, paragraph 1, of the Convention.

2. The Committee notes the observations by the General Workers' Union and by the Trade Union Confederation of Workers' Committees (CC.OO.). It is stated that the Convention lacks legal coverage in the country, that in practice verification as to whether the young person has been considered fit for work by a qualified physician is not required, that the authority competent for sending the document attesting fitness for employment of the young person and defining conditions of work, has not been determined. The Committee would appreciate the Government's comments on these observations as well as any clarifications in this regard.

[The Government is asked to report in detail for the period ending 30 June 1991.]

Direct Request (CEACR) - adopted 1987, published 74th ILC session (1987)

The Committee notes with interest the information concerning the implementation of the provisions of the Convention through various collective agreements, copies of which were transmitted by the Government in its report. The Committee also notes Act No. 14 of 25 April 1986 issuing general regulations respecting all the measures needed to give effect to the right to health protection recognised under section 43 and other sections of the Constitution. The Government states in its report that the specific situation of young persons may be taken into account when issuing regulations under the above Act. In this respect, the Committee trusts that the Government will state in its next report the way in which the provisions of the Convention can be applied through the General Health Act to children and young persons, who without being wage earners, are working in family enterprises, in accordance with Article 1, paragraph 1, of the Convention.