Solicitud directa (CEACR) - Adopción: 2004, Publicación: 93ª reunión CIT (2005)

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

The Committee notes the Government’s first and second reports.

Article 1 of the Convention. Measures taken to secure the prohibition and elimination of the worst forms of child labour. The Committee notes with interest that the Government has adopted the Act on the rights of girls and boys, of 31 January 2000, and the Act on the protection of the rights of girls, boys and young persons, of 29 May 2000. The Committee also notes that the Federal Penal Code and the Federal Code of Penal Procedures were amended on 4 January 2002 so as to establish more severe penalties for certain offences, including the corruption of young persons, and to categorize offences relating to child pornography and sex tourism involving children. The Committee notes that the Government has adopted a National Social Development Plan (2001-06). One of the guiding principles of this Plan is that, in order to increase equity and equality of opportunity, it is necessary to secure the protection and development of children and young persons.

Article 3. Worst forms of child labour. Clause (a) 1. All forms of slavery or practices similar to slavery. The Committee notes that article 1 of the Constitution of Mexico prohibits the practice of slavery. It also notes that section 364 II of the Federal Penal Code provides for penalties for any person who, in any manner whatsoever and by prejudicing a third person, is in violation of the rights and guarantees set forth in the Constitution. Furthermore, section 45(a) and (b) of the Act on the protection of the rights of girls, boys and young persons provides that girls, boys and young persons have the right: (a) not to be subjected to torture or to penalties or to other cruel, inhuman or degrading forms of treatment; and (b) not to be deprived of their freedom in an illegal or arbitrary manner.

2. Debt bondage and serfdom. The Committee notes that under article 123 A XXIV of the Constitution, workers shall be responsible for their debts towards their employers, associates, parents or dependants and that, in no case and for no reason may reimbursement of the debt be required from the members of their family. Nor shall any part of such debts be recoverable which is higher than the monthly wage of the worker. The Committee also notes that under section 365 II of the Federal Penal Code, a penalty shall be imposed upon any person who concludes an agreement with another person depriving the latter of her or his freedom or imposing conditions constituting a form of slavery, or who takes control of a person and transfers her or him to a third party so that the latter may conclude such an agreement.

3. Forced or compulsory labour. The Committee notes that under article 5 of the Constitution no person may be compelled to provide work without receiving equitable remuneration and without having giving her or his consent, unless said work is imposed through a penalty handed down by the judicial authority. The contract of employment shall only constitute an obligation to provide the agreed service for the period established by law and may not in any case provide for the renunciation, lost or diminution of civil and political rights. The Committee also notes that under section 365 I of the Federal Penal Code a penalty shall be imposed upon any person who compels another person to perform work or provide a service, without the corresponding remuneration, through recourse to physical or moral violence, deception, intimidation or any other means.

4. Forced or compulsory recruitment of children for use in armed conflict. The Committee notes that under section 4 of the Act on military service, conscription for recruitment for military service shall be completed during the second half of the year during which individuals reach 18 years of age. Their service shall commence on 1 January of the following year. It also notes that under section 5 of the Act on military service, military service shall constitute one year of active service for persons aged 18 years.

Clause (b). 1. Use, procuring or offering of a child for prostitution. The Committee notes that under section 201 of the Federal Penal Code, any person who induces, procures, encourages or compels a person under 18 years of age to engage in prostitution, perform sexual practices or commit offences is guilty of the crime of the corruption of young persons. It also notes that under section 201bis (3) of the Penal Code, a penalty is established for any person who induces, encourages, invites or approaches in any other manner one or more persons travelling within or outside the national territory and offers them sexual relations with a young person under 18 years of age. Furthermore, the Committee notes that under section 208 of the Federal Penal Code, a penalty shall be imposed upon any person who encourages, act as an accomplice, agrees to or permits sexual relations with a young person under 18 years of age.

2. Use, procuring or offering of a child for the production of pornography or pornographic performances. The Committee notes that under section 201 of the Federal Penal Code, any person who induces, procures, encourages or compels a person under 18 years of age to perform acts such as corporal, lascivious or sexual performances, or to commit offences is guilty of the crime of the corruption of minors. The Committee also notes that under section 201bis of the Federal Penal Code, any person who attempts to persuade or encourages by any means whatsoever, one or more persons under 18 years of age, with or without their consent, or compels or induces them to engage in corporal, lascivious or sexual performances, with a view to filming, photographing or exhibiting them through printed or electronic media, with or without a view to profit, shall be penalized. A penalty shall also be imposed on any person who him or herself or through a third party, directs, administers or supervises any type of criminal association whatsoever with the objective of carrying out the activities envisaged in the previous subsections involving young persons under 18 years of age. For the purposes of section 201bis, the term child pornography means the sexually explicit representation of images of young persons under 18 years of age.

Clause (c). Use, procuring or offering of a child for illicit activities. The Committee notes that under section 194 I, II, III of the Federal Penal Code, penalties shall be imposed on any person who produces, transports, traffics or sells, provides, even free of charge, or prescribes one of the drugs referred to in section 193 without the authorization envisaged in the Health Act (for the purposes of this subsection, the terms produce and sell mean respectively manufacture, process, prepare or present drugs and sell, buy, acquire or supply drugs); brings into or takes out of the country one of the drugs referred to in section 193, even momentarily or while in transmit (in cases where the bringing of drugs into or taking them out of the country has not reached the stage of consumption, but where the acts in question clearly show that this was the purpose of the agent, the penalty shall be up to two-thirds of the penalty established by the present provision); provides resources or of an economic or any other nature, or collaborates in any manner whatsoever in the financing, supervision or development activities with a view to facilitating the perpetration of any of the crimes referred to in Chapter I, Title 7 of the Code entitled "On the production, possession, trafficking, promotion or other acts related to drugs". The Committee notes that under section 196 II and III of the Federal Penal Code, the penalties applicable for the offences laid down in section 194 of the Code shall be more severe where a young person is used with a view to committing one of these crimes.

Article 3(d) and Article 4. Types of hazardous work. The Committee notes that section 175 of the Federal Labour Act prohibits the engagement of persons under 18 years of age in industrial night work. It also notes that, under the terms of section 160 of the Federal Regulations on occupational safety, health and the working environment, young persons under 18 years of age may not be employed in work involving exposure to ionizing radiation. Furthermore, the Committee notes that section 202 of the Federal Penal Code prohibits work by persons under 18 years of age in bars, taverns and places of debauchery. The Committee notes that article 123 of the Constitution prohibits young persons under 16 years of age from performing unhealthy and hazardous types of work, industrial night work or any other work after ten o’clock in the evening. It further observes that section 175 of the Federal Labour Act prohibits work by young persons under 16 years of age in the following activities: outlets for the rapid consumption of drinks; work likely to prejudice their morals or upbringing; itinerant types of work, without special authorization from the labour inspectorate; work underground or underwater; hazardous or unhealthy types of work; work which exceeds their strength and which may prevent or delay their normal physical development; work in non-industrial establishments after ten o’clock in the evening and any other types of work determined by the law. Under the terms of section 176 of Federal Labour Act, the hazardous and unhealthy types of work referred to in section 175 of the Act shall be those which, by their nature and the physical, chemical or biological conditions in which they are carried out or the composition of the raw materials used, are likely to affect the life, development and physical and mental health of young persons. The types of work covered by this definition shall be determined by regulation. Under section 154 of the Federal Regulations on occupational safety, health and the working environment, the employment of young persons between 14 and 16 years of age is prohibited in hazardous and unhealthy types of work in which: (1) teratogenic or mutagenic substances are handled or transported; (2) there is a risk of exposure to sources of ionizing radiation capable of contaminating the working environment; (3) there exist abnormal atmospheric pressure or harmful thermal conditions; (4) the muscular effort required may affect conception; (5) the work is carried out on maritime drilling towers or platforms; (6) the work is carried out underwater, underground or in open cast mines; (7) the work is carried out in confined spaces; (8) the work involves welding; and (9) other activities are carried out which are determined to be hazardous or unhealthy by the law. Under section 159 of the Federal Regulations on occupational safety, health and the working environment, young persons between the ages of 14 and 16 years may not be engaged in the hazardous and unhealthy types of work referred to in section 154 of the Act.

The Committee notes that certain of the provisions referred to above, establish the age of 18 years for admission to types of work which, by their nature or the circumstances in which they are carried out, are likely to harm the health, safety or morals of young persons (sections 175 and 160 of the Federal Labour Act and section 202 of the Federal Penal Code). Furthermore, it notes that the age established for admission to hazardous and unhealthy types of work is 16 years. It notes the information provided by the Government in its report that the provisions respecting the special protection of young persons, and particularly those relating to types of hazardous work, are in conformity with Paragraphs 3 and 4 of Recommendation No. 190. The Committee reminds the Government that, under the terms of Article 3(d) of the Convention, work which by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children applies to all children under 18. The Committee draws the Government’s attention to the fact that Paragraph 4 of Recommendation No. 190 provides that national laws or regulations or the competent authority, after consultation with the workers’ and employers’ organizations concerned, may authorize employment or work from the age of 16 on condition that the health, safety and morals of the children concerned are fully protected and that they have received adequate specific instruction or vocational training in the relevant branch of activity. The Committee therefore requests the Government to take the necessary measures to ensure that young persons between the ages of 16 and 18 are only authorized to perform types of hazardous work in conformity with the provisions of Paragraph 4 of Recommendation No. 190.

The Committee finally notes the Government’s indication that the Confederation of Mexican Workers (CTM), the Confederation of Industrial Chambers of the United States of Mexico (CONCAMIN) and the Employers’ Confederation of the Republic of Mexico (COPARMEX) participate in consultations on the aspects of concern to them.

Article 4, paragraph 2. Identification of where types of hazardous work exist. The Government indicates that labour inspectors, in accordance with sections 8 and 12 of the General Regulations on inspection and the application of sanctions for violations of the labour legislation, supervise the application of labour standards in all workplaces. It requests the Government to provide information on the results achieved with regard to the identification of the types of hazardous work so determined.

Paragraph 3. Periodical examination and revision of the list of types of hazardous work determined. The Committee notes that the Government’s indication that, in the context of the Planning Act, consultations were held with employers’ and workers’ organizations with a view to updating the labour legislation. It requests the Government to provide information on any new types of hazardous work that are determined.

Article 5. Mechanisms to monitor the implementation of the provisions of the Convention. The Government indicates that the worst forms of child labour envisaged in Article 3(a), (b) and (c) of the Convention are classified as crimes. The Attorney-General of the Republic and the Ministry of Public Safety are responsible for their monitoring and enforcement. For this purpose, they have established monitoring mechanisms for these crimes. In this respect, on 7 November 2000, the Special Coordinating Unit for the Trafficking of Young Persons, assigned to the specialized unit on organized crime of the Attorney-General of the Republic, commenced operations. In May 2001, the preventive federal police, under the responsibility of the specialized unit, established the Mexican Electronic Police Unit. This Unit is composed of a team of experts responsible for locating exploitation networks on the Internet. One of the special functions of this Unit is to assist in seeking and identifying denunciations at the national level, and to establish a database on sexual exploitation. With regard to Article 3(d) of the Convention, the Government indicates that the Ministry of Labour and Social Insurance, through the labour inspectorate, is responsible for controlling and enforcing labour standards. Under section 132 XXIV of the Federal Labour Act, the employer has to allow the inspection and control of the establishment by labour inspectors. Under section 173 of the Federal Labour Act, work by persons between 14 and 16 years of age is subject to the control and special protection of the labour inspectorate. Noting the information provided by the Government, the Committee requests it to provide information on the activities and operation of the Special Coordinating Unit for the Trafficking Of Young Persons, the Mexican Electronic Police Unit and the labour inspection services, and to provide relevant reports and documents.

Article 6. Programmes of action to eliminate the worst forms of child labour. The Committee notes that, in the context of its National Social Development Plan (2001-2006), the Government has established, in consultation with the various social groups, the following programmes: the National Programme on the Rights of Children and Young Persons, the Inter-Institutional Programme for the Protection of Young Persons in Border Areas and the Programme for the Protection and Development of Children in Economic Activities. The Committee requests the Government to provide information on the impact of these programmes on the elimination of the worst forms of child labour and the results achieved.

Article 7, paragraph 1. Penalties. The Committee notes that the Federal Penal Code provides for sentences of imprisonment for violations of the prohibition of the worst forms of child labour. Under the terms of section 364 II of the Code, a sentence of imprisonment of between six months and three years and a fine of between 25 and 100 days is established for violations of the rights and guarantees set forth in the Constitution, including the prohibition of slavery. In accordance with section 365 I and II of the Penal Code, a penalty of between three days and one year of imprisonment and a fine of between 5 and 100 pesos must be imposed on any person found guilty of having compelled another person to perform work or provide a service, without the corresponding remuneration, by means of physical or moral violence, deception, intimidation or any other manner; or who concludes with a third person a contract depriving that person of freedom or imposing conditions constituting a form of servitude, or who takes control of a person and transfers that person to a third party with a view to the latter concluding such an agreement. Furthermore, section 201 of the Penal Code provides that any person who commits the crime of the corruption of young persons is liable to a sentence of imprisonment of between five and ten years and a fine of between 500 and 2,000 days. Section 201bis(3) of the Penal Code provides that any person who proposes that another person should engage in sexual relations with a young person under 18 years of age is liable to a sentence of imprisonment of from five to 14 years and a fine of between 100 and 1,000 days. Under section 201bis, any person who is found guilty of having compelled or induced another person to engage in corporal, lascivious or sexual performances, with a view to filming, photographing or exhibiting them in printed or electronic form, is liable to a sentence of imprisonment of from five to ten years and a fine of between 1,000 and 2,000 days. Under the terms of section 201bis of the Penal Code, a sentence of imprisonment of from eight to 16 years and a fine of from 3,000 to 10,000 days may be imposed, together with the confiscation of the objects, instruments or products of the crime, on any person who administers or supervises any type of criminal association whatsoever with a view to undertaking the actions envisaged in the previous paragraphs involving young persons under 18 years of age. Furthermore, sections 194 I, II and III of the Penal Code establishes a sentence of imprisonment of between ten and 25 years and a fine of between 100 and 500 days for any person found guilty of producing, manufacturing or trafficking drugs or other similar substances. The Committee notes that, in accordance with section 196 II and III of the Federal Penal Code, the penalties applicable for the crimes set forth in section 194 of the Code are increased by half in cases where the victim is a young person or the young person is used with a view to committing one of the crimes.

The Committee also notes that the Federal Labour Act establishes administrative penalties in relation to hazardous and unhealthy types of work. Section 995 of the Act provides that any employer in breach of the standards governing the work of young persons shall be liable to a fine of between three and 155 times the general minimum wage; section 996 of the Act provides that any employer in breach of protective labour provisions in hotels, restaurants, bars and other similar establishments shall be liable to a fine of between three and 155 times the general minimum wage. The Committee requests the Government to provide information on the application of these penalties in practice.

Paragraph 2. Effective and time-bound measures. Noting that the Government has not provided information concerning Article 7, paragraph 2(c), (d) and (e) of the Convention, the Committee requests it to provide detailed information on the effective time-bound measures adopted to: (c) ensure access to free basic education and 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.

Paragraph 3. Competent authority responsible for the implementation of the provisions giving effect to the Convention. The Government indicates that the Attorney-General of the Republic and the Ministry of Public Security are the authorities responsible for the application of the provisions respecting the worst forms of child labour set out in Article 3(a), (b) and (c). With regard to hazardous work, the Ministry of Labour and Social Insurance is the authority responsible for the application of labour standards.

Parts IV and V of the report form. Application of the Convention in practice.  The Committee notes that, during the course of 2001 and the period from January to June 2002, the Ministry of Labour and Social Insurance carried out a total of 51,517 inspections and identified the presence of 463 young persons working, who are not engaged in the worst forms of child labour. The Committee also notes that, from January to March 2003, the labour inspection services carried out 2,863 inspections and did not identify the presence of young workers. The Committee notes that the statistics and data do not specifically cover the worst forms of child labour. It therefore requests 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, investigations, prosecutions and convictions. To the extent possible, all information provided should be disaggregated by sex.