Solicitud directa (CEACR) - Adopción: 2003, Publicación: 92ª reunión CIT (2004)

Convenio sobre las peores formas de trabajo infantil, 1999 (núm. 182) - Ecuador (Ratificación : 2000)

The Committee takes note of the Government’s first report.

Article 1 of the Convention. The Committee notes the information supplied by the Government in its first report. It notes that the Government is taking various measures, both legislative and in the area of technical cooperation, to eliminate the worst forms of child labour. The Committee notes with interest that, in cooperation with ILO/IPEC, the Government is planning to implement a time-bound programme to eliminate the worst forms of child labour. It requests the Government to indicate the measures taken under the programme to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.

Article 3. Worst forms of child labour. Clause (a). 1. Slavery, debt bondage and the trafficking of children. The Committee notes that, according to article 23(4) of the Constitution, slavery, all forms of bondage and the trafficking of persons are prohibited. It also notes that according to section 70 of the Children’s and Young Persons’ Code of 2003, trafficking of children means the abduction, transfer or holding of a boy, a girl or a young person, within or outside the country and by whatever means, with the aim of using him or her for prostitution, sexual or economic exploitation, pornography, the trafficking of drugs, the trafficking of organs, bondage, illegal adoption or any other unlawful activity. The means of trafficking include substitution of a person, consent obtained by fraudulent means or force, and the giving or receiving of payments or undue benefits for the purpose of obtaining the consent of the parents, guardians, persons or institution having guardianship of the boy, girl or young person, i.e. a person under 18 years of age (section 4 of the Code of 2003).

2. Forced or compulsory labour. The Committee notes that article 23(17) of the Constitution prohibits forced labour. It also notes that under section 81 of the Children’s and Young Persons’ Code of 2003, boys, girls and young persons have the right to protection by the State, society and the family against economic exploitation and all forms of slavery, bondage and forced labour.

3. Forced or compulsory recruitment of children for use in armed conflict. The Committee notes the information supplied by the Government in its report that section 5 of the Compulsory Military Act, as amended, establishes 18 to 55 years as the age of liability for military service. It also notes that under section 57(3) of the Children’s and Young Persons’ Code of 2003, it is forbidden to recruit, or allow the direct participation of, boys, girls and young persons in internal or international armed conflicts.

Clause (b). Use, procuring or offering of a child for prostitution or pornography. The Committee notes that article 50(4) of the Constitution requires the State to take measures to ensure that children and young persons are protected against pornography, prostitution and sexual exploitation. It also notes that section 52(1) of the Children’s and Young Persons’ Code of 2003 prohibits the participation of boys, girls and young persons under 18 years of age (section 4 of the Code) in productions of a pornographic nature. According to section 69 of the Code, sexual exploitation means child prostitution and pornography. Child prostitution means the use of a boy, girl or young person in sexual activities in exchange for payment or any other remuneration; and child pornography means any representation, by any means whatsoever, of a boy, girl or young person engaging in explicit sexual activities, whether real or simulated, or any representation of their genital organs, for the purpose of encouraging, suggesting or evoking sexual activity.

Clause (c). Use, procuring or offering of a child for illicit activities. The Committee notes that section 78 of the Children’s and Young Persons’ Code of 2003 establishes the right of boys, girls and young persons to be protected against participation in the production, marketing and advertising of the following: alcoholic beverages, tobacco, narcotics and psychotropic substances, weapons, explosives, and substances that endanger life and personal safety. The Committee also notes that, furthermore, section 70 of the Children’s and Young Persons’ Code of 2003 defines the trafficking of children as the abduction, transfer or holding of a boy, girl or young person, within or outside the country and by whatever means, for the purpose of using him or her for drug trafficking or any other unlawful activities. The Committee observes that section 78 of the Code of 2003 establishes a right and not a prohibition. It reminds the Government that pursuant to Article 3(c) of the Convention, the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties, are considered to be one of the worst forms of child labour, and that Article 1 of the Convention requires each Member which ratifies the Convention to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour. The Committee therefore asks the Government to provide information on the measures taken or envisaged to prohibit the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs.

The Committee further notes that section 74 of the Children’s and Young Persons’ Code of 2003 requires the State to adopt legislative, administrative, social, educational and other measures necessary for the protection of boys, girls and young persons, and to implement policies and programmes to prevent sexual exploitation, trafficking in persons and the unlawful transfer of persons. It requests the Government to indicate whether any such measures, policies and programmes to combat child labour have been adopted, and to provide copies of them.

Clause (d). Hazardous work. The Committee notes that section 138(1) of the Labour Code prohibits the employment of men and women under 18 years of age in an industry or in work which is deemed to be hazardous or unhealthy, such industry or work being determined in special regulations. The Committee further notes that under section 87(1) of the Children’s and Young Persons’ Code of 2003, young persons, namely persons 12 to 18 years of age (section 4 of the Code of 2003) may not be employed in certain hazardous activities.

Article 4, paragraph 1. Determination of hazardous work. The Committee notes that section 138(2) of the Labour Code sets forth a list of industries deemed to be hazardous and which are covered by the prohibition. It further notes that section 138(1) of the Labour Code specifies that the activities prohibited for women and men under 18 years of age in industries or work deemed to be hazardous or unhealthy are to be determined in special regulations. In its report, the Government states that in order to specify and update the hazardous work prohibited for young persons and children, there have been two nationwide consultations, one with civil society and interested state bodies, including the representative organizations of employers and workers, and the other with the indigenous population. Following these consultations, two reports were prepared which will enable the work prohibited for children to be updated and regulations to be drafted, in accordance with section 138 of the Labour Code.

The Committee notes that section 87(1) of the Children’s and Young Persons’ Code of 2003 prohibits work by young persons, namely persons 12 to 18 years of age, in certain jobs such as work in mines, refuse dumps and extractive industries, the handling of explosives or substances that are dangerous for physical development or health, work in places where alcoholic beverages are sold and work requiring the use of dangerous machinery. It further notes that pursuant to section 87(2) of the Code of 2003, the National Council for Children and Young Persons shall determine the types of work which are hazardous, harmful or dangerous for young persons. In so doing, the Council must take account of the risks for the life, personal safety, health, education, security and overall development of young persons. The Committee requests the Government to indicate whether the National Council for Children and Young Persons has determined the types of work which are hazardous and, if so, to provide copies of the relevant legislative provisions.

The Committee reminds the Government that, according to Article 4, paragraph 1, of the Convention, at the time of determining types of hazardous work, relevant international standards, in particular Paragraph 3 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190), must taken into consideration. It draws the Government’s attention in particular to Paragraph 3 of Recommendation No. 190, which lists types of work to which governments should give consideration in determining hazardous work, namely: (a) work which exposes children to physical, psychological or sexual abuse; (b) work underground, under water, at dangerous heights or in confined spaces; (c) work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads; (d) work in an unhealthy environment which may, for example, expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health; and (e) work under particularly difficult conditions such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer. The Committee trusts that in drafting the regulations to set forth the types of hazardous work which are prohibited for young persons and children under 18 years of age, the Government will take into consideration the types of work listed in Paragraph 3 of Recommendation No. 190. It requests the Government to report on developments in this regard and to provide a copy of the regulations as soon as they have been adopted.

The Government is also asked to indicate whether the list of types of hazardous activities set forth in section 138(2) of the Labour Code has been replaced by the one in section 87(1) of the Children’s and Young Persons’ Code of 2003, or whether the two lists are complementary.

Paragraph 2. Identification of hazardous work. Noting that the Government has provided no information on this paragraph, the Committee requests it to indicate the measures taken or envisaged to identify where the types of work determined as hazardous exist, and to report on the results.

Article 5. Mechanisms to monitor the implementation of the provisions giving effect to this Convention. The Committee notes that, according to the Government, Convention No. 182 is applied by the Ministry of Labour and Human Resources, and more particularly by the Department of International Affairs and Integration where matters of standards are concerned. It also notes that as a result of its collaboration with ILO/IPEC, the Government adopted Decree No. 792 of 1997, under which the National Committee for the Gradual Elimination of Child Labour (CONEPTI) was established in 1997. The above Committee is composed of the Ministries of Labour and Human Resources, and Education, Culture and Well-being, national organizations of employers and workers, the National Institute for the Child and the Family (INNFA) and representatives of the ILO and UNICEF in an advisory capacity. The Committee requests the Government to provide information on the operation of CONEPTI and to indicate whether appropriate mechanisms have been set up to monitor the application of the Convention, in accordance with Article 5 of the Convention.

Article 6, paragraph 1. Programmes of action to eliminate the worst forms of child labour. 1. Projects in cooperation with ILO/IPEC. The Committee notes that, according to the information supplied by the Government in its report, since signing a Memorandum of Understanding with ILO/IPEC in 1997, the Government has been implementing a number of projects to abolish child labour, and in particular to eliminate hazardous work in various sectors. The Committee takes note of the following projects: project on the elimination of child labour in brickworks (Quito and Cuenca), refuse dumps (Santo Domingo de los Colorados) and small-scale mines (Bella Rica). The Committee requests the Government to provide information on the implementation of the abovementioned projects.

2. Time-bound programmes. The Committee notes that, according to a document published by IPEC South America, Time-bound programme, studies are being conducted in Ecuador with ILO/IPEC participation, to ascertain the extent of the employment of children in the worst forms of child labour and to identify these forms of child labour rapidly. The main areas covered by the studies are sexual exploitation, the construction sector, banana and flower cultivation, small-scale mining and refuse collection. The Committee requests the Government to provide information on the results of the studies now under way and of the action programmes implemented as a result of the above studies in order to eliminate the worst forms of child labour referred to above.

The Committee also notes that, according to the abovementioned Time-bound programme, other measures are to be taken in order to complete the preparatory activities of the time-bound programme. It notes in particular that studies will be conducted in order to ascertain rapidly the situation of child labour in domestic work and subsistence agriculture. It requests the Government to provide information on the results of the abovementioned studies.

Paragraph 2. Consultations with government institutions and employers’ and workers’ organizations and other groups concerned. The Committee requests the Government to indicate whether consultations were held with employers’ and workers’ organizations when the abovementioned programmes were prepared. It requests the Government to indicate to what extent the views of other concerned groups were taken into consideration.

Article 7, paragraph 1. Measures to ensure the effective implementation and enforcement of the provisions giving effect to the Convention. The Committee notes that sections 528.1 and 528.5 of the Penal Code provide for penalties of imprisonment of from two to four years for: encouraging and facilitating the prostitution of another person; encouraging or facilitating the entry to or exit from the country or the transfer within the country of persons for the purpose of prostitution. It further notes that under sections 528.2 and 528.6 of the Penal Code, the prison sentence will be heavier where the offence is committed against minors under 14 years of age. With regard to hazardous work, the Committee notes that section 148 of the Labour Code provides for penalties of imprisonment for breach of the provisions prohibiting night work by children (section 137) and prohibiting the employment of men and women under 18 years of age in hazardous activities (section 138). Section 95 of the Children’s and Young Persons’ Code of 2003 establishes penalties for breach of the provisions on the work of boys, girls and young persons. A fine of from $50 to $300 applies if the breach is committed by the parents or guardians; and a fine of from $200 to $1,000 applies if the offender is the employer or any other person benefiting directly from the work of boys, girls and young persons. The Committee requests the Government to provide information on the application of the abovementioned provisions in practice.

The Committee notes that the abovementioned provisions address only prostitution and hazardous work. It reminds the Government that, according to Article 3 of the Convention, the worst forms of child labour also cover all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; the use, procuring or offering of a child for the production of pornography or for pornographic performances; the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties. The Committee accordingly asks the Government to indicate the measures taken to ensure the effective implementation of the Convention, in particular by the establishment of penalties.

Paragraph 2. Effective and time-bound measures. 1. Time-bound programmes. The Committee notes the information supplied in the Government’s report concerning the legislative measures taken to give effect to this provision of the Convention. It observes, however, that the Government has sent no information on time-bound measures to: (a) prevent the engagement of children in the worst forms of child labour; (b) provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration; (c) ensure access to free basic education and, wherever possible and appropriate, vocational training, for all children removed from the worst forms of child labour; (d) identify and reach out to children at special risk; and (e) take account of the special situation of girls. The Committee requests the Government to provide information on the measures taken or envisaged to prevent child labour in the areas of sexual exploitation, the construction sector, banana and flower growing, small-scale traditional mines, refuse dumps, domestic work and subsistence agriculture, as well as the other worst forms of child labour identified by the Government, in accordance with Article 7, paragraph 2(a)-(e), of the Convention.

2. Child labour in mines. The Committee notes the report published by ILO/IPEC on the national seminar on child labour in mines supplied by the Government. According to the above report, one way of preventing the employment of children in mines would be to adapt the education system to the needs of boy and girl workers and to carry out inspections. The Committee requests the Government to indicate the measures to avoid child labour in mines.

Article 8. Enhanced international cooperation and/or assistance. The Committee notes the information supplied by the Government in its report to the effect that cooperation has been proposed between the member countries of the Andean Community in order to exchange information and experience concerning the elimination of child labour. The Committee further notes that in its concluding observations on Ecuador’s initial report (CRC/C/15/Add.93, paragraph 30), the Committee on the Rights of the Child noted Ecuador’s efforts to combat the trafficking and sale of children, but remained concerned about the lack of sufficient preventive measures in this area. Concerning the trafficking of boys and girls into neighbouring countries for work, including prostitution, the abovementioned Committee recommended that measures be taken on an urgent basis, such as a comprehensive programme of prevention, including an awareness-raising campaign and educational programmes, in particular in the rural areas and for concerned governmental officials, and of rehabilitation of the victims. It furthermore strongly encouraged the Government to engage in cooperation with neighbouring countries. The Committee requests the Government to provide information on the measures taken or envisaged in these areas.

Part IV of the report form. The Committee notes that, according to a report published by IPEC South America in July 2001 (Studies in statistics - National diagnosis), Ecuador has made significant progress in child protection standards. It notes, however, that in practice a number of problems remain, particularly in the areas of sexual exploitation, the construction sector, banana and flower growing, small-scale traditional mining, refuse dumps, domestic work and subsistence agriculture. Furthermore, the Committee notes that in its final observations on Ecuador’s initial report (CRC/C/15/Add.93, paragraphs 29 and 30), the Committee on the Rights of the Child expressed its concern at the insufficient measures addressing the serious issue of child labour, particularly domestic labour, and the economic and sexual exploitation of children. It expressed concern at the increasing number of children living and/or working on the streets, who require special attention because of the risks they are exposed to. The Committee recommended that the Government should pay particular attention to research and monitor the situation of children living and/or working on the streets, and those involved in hazardous labour, including domestic service and prostitution. The Committee requests the Government to provide information on the measures taken or envisaged to solve the practical difficulties encountered which are referred to above.

Part V of the report form. While noting the information and documents sent by the Government, the Committee observes that some of the statistics and data do not relate specifically to the worst forms of child labour. It accordingly asks the Government to provide statistics and information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, penal sanctions applied, etc. To the extent possible, the information provided should be disaggregated by sex.