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

Convenio sobre la edad mínima, 1973 (núm. 138) - Brasil (Ratificación : 2001)

The Committee notes the Government’s first and second reports. It requests the Government to provide more information on the following points.

Article 2, paragraph 1, of the Convention. 1. Scope of application. The Committee notes that, at the time of ratification, the Government specified a minimum age of 16 years for admission to employment or work within its territory and means of transport registered in its territory. In this regard, the Committee notes that, by virtue of article 7, paragraph XXXIII of the Federal Constitution of 1988, as amended by Constitutional Amendment No. 20 of 15 December 1998, work by children under the age of 16 years is prohibited. It also notes that, under the terms of section 403 of the Consolidated Labour Act, as amended by Act No. 10.097/2000, and section 60 of the Statute of the Child and Adolescent, Act No. 8.069 of 13 July 1990, as amended by Amendment No. 20 of 1998, work by children under 16 is prohibited. However, the Committee observes that section 402 provides that children under the specified minimum age for admission to employment or work of 16 years could work in workshops in which only the child’s family members work and which is under the management of the father, mother or guardian, except for working at night (section 404), in hazardous work (405) and overtime (section II).

The Committee reminds the Government that by virtue of Article 2, paragraph 1, of the Convention, the minimum age for admission to employment or work shall apply to employment or work in any occupation, subject to Articles 4 to 8 of this Convention. In this respect, the Government indicates that the constitutional provisions on the minimum age for admission to employment or work and the prohibition on unhealthy, dangerous or night work for children under the age of 18 years applies to all and to any work, and there are no exceptions whatsoever under the Constitution. According to the Government, the main reason is that the Federal Constitution prohibits any work by children under the age of 16 except, of course, as apprentices from the age of 14 years. Thus, there is nothing at the infra-constitutional level which authorizes work below the established legal age or in conditions harmful to the heath, safety or morality of children and young persons. The Committee understands from the explanations of the Government that only children of 14 years and above may, as apprentices, work in workshops in which only the child’s family members work and which is under the management of the father, mother or guardian. The Committee asks the Government to clarify its interpretation of section 402 of the Consolidated Labour Act indicating from what age children may work in workshops in which only the child’s family members work and which is under the management of the father, mother or guardian. It also asks the Government to specify in what type of workshops children may work indicating their conditions of work.

2. Minimum age for admission to employment or work. (i) Work performed in streets, squares and other public places. The Committee notes that subsection (2) of section 405 of the Consolidated Labour Act provides that work performed by a minor (a worker aged from 14 to 18 years - section 402) in streets, squares and other public places shall be subjected to prior authorization by the Juvenile Court, which is responsible for verifying that the occupation is essential to the minor’s own subsistence or that of his parents, grandparents or siblings and that the occupation cannot prejudice his moral development. The Committee observes that, by virtue of subsection (2) of section 405, children from 14 years of age may be admitted to employment or work in streets, squares and other public places. However, as indicated above, upon ratifying the Convention, Brazil specified 16 years as the minimum age for admission to employment or work. The Committee requests the Government to indicate the measures taken or envisaged to ensure that no minor under 16 years of age shall be admitted to employment or work in streets, squares and other public places.

(ii) Interdiction to lower the minimum age once declared. The Government indicates that the Federal Supreme Court, the highest organ of the judicial power, heard a direct action for unconstitutionality, with an application for preliminary proceedings, by the National Confederation of Workers in Industry (CNTI) against Constitutional Amendment No. 20 of 1998, which raised the minimum age for admission to employment or work from 14 to 16 years. The CNTI is the highest official trade union body in the country representing the category of workers in the metallurgical industries. In its application, the CNTI argues that Constitutional Amendment No. 20 of 1998, in raising the minimum age for admission to employment or work, violates the fundamental objectives of the Federal Republic of Brazil set out in article 3 of the Federal Constitution which are, inter alia: (III) to eradicate poverty and marginalization and reduce social and regional inequalities; and (IV) to promote the well-being of all, without prejudice on grounds of origin, race, sex, colour, age or any other forms of discrimination. The CNTI declares that the Government is helping to increase hardship and poverty by preventing children who need to work to support themselves and, very often, their families. In this regard, the Government indicates that the case has not been decided by the Federal Supreme Court, since the preliminary application was refused. The Government also indicates that the National Congress is debating constitutional amendments that seek to reduce the minimum age of employment. Moreover, the Government reports information about certain decisions of the Children and Juvenile Courts. According to this information, the Children and Juvenile Courts, in cases of warrants in situations contrary to the Federal Constitution and other legislation, adopt the following interpretations: the unconstitutionality of Amendment No. 20 of 1998, which raised the minimum age to 16 years, holding that the amended provision, paragraph 33 of section 7 of the Federal Constitution, is an inalienable provision and thus cannot be altered by constitutional amendment. Additionally, in some cases the warrant contains not only an authorization to work but also an order that the Labour Inspectorate should not apply sanctions against the employer. Noting the information provided by the Government, the Committee recalls that, upon ratifying the present Convention, Brazil duly specified the minimum age of 16 years. It also recalls that Article 2, paragraph 2, of the Convention foresees the raising of the minimum age but does not allow the lowering of the minimum age once declared. The Committee hopes that the Government will take the necessary measures to keep the minimum age for admission to employment or work at 16 years, as specified upon ratification. It asks the Government to continue reporting on any development in this respect.

Article 2, paragraph 3. Age of completion of compulsory schooling. The Committee notes that, according to section 32 of Act No. 9.394 of 20 December 1996, basic education starts at the age of 7 years (end of infant education at 6 years) and lasts for eight years. Hence, compulsory education in Brazil ends at the age of 14 years, and the declared minimum age of 16 years is therefore higher than the end of compulsory education. The Committee considers that the requirement set out in Article 2, paragraph 3, of the Convention is fulfilled since the minimum age for employment, namely 16 years for Brazil, is not less than the age of completion of compulsory schooling. The Committee is nevertheless of the view that compulsory education is one of the most effective means of combating child labour and that it is important to emphasize the necessity of linking the age of admission to employment to the age limit for compulsory education. If the two ages do not coincide, various problems may arise. If compulsory schooling comes to an end before the young persons are legally entitled to work, there may be a period of enforced idleness (see the ILO General Survey of 1981 on minimum age relating to Convention No. 138 and Recommendation No. 146, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 4(B)), ILO, 67th Session, Geneva, 1981, paragraph 140). The Committee therefore considers it desirable to ensure compulsory education up to the minimum age for employment, as provided under Paragraph 4 of Recommendation No. 146. According to the Government’s information, the age of completion of compulsory schooling of 14 years is consistent with work under an apprenticeship scheme from the age of 14 years and it is harmonized with the provisions of Article 6 of the Convention. However, the Committee is of the view that the gap between the age of completion of compulsory schooling of 14 years and the minimum age for admission to employment or work of 16 years could lead to a practical difficulty for children who do not continue with higher secondary education or who do not work under an apprenticeship scheme from the age of 14 years. Noting the information provided by the Government, the Committee hopes that the Government will indicate any new developments on this point.

Article 3, paragraphs 1 and 3. Minimum age for admission to the types of hazardous work. By virtue of article 7, paragraph XXXIII, of the Federal Constitution, night work, dangerous or unhealthy work is prohibited for children under the age of 18 years. According to section 403 of the Consolidated Labour Act, as amended by Act No. 10.097 of 19 December 2000, a minor (a worker aged from 14 to 18 years - section 402) may not work in places harmful to his education, physical, mental, moral and social development and at times and in places which would prevent attendance at school. Moreover, section 405 of the Consolidated Labour Act states that minors are not permitted to work: (1) in dangerous or unhealthy locations or services as set out in the table approved for this purpose by the Labour Inspectorate; and (2) in locations or services prejudicial to their morality. Section 1 of Labour Inspectorate Order No. 20 of 13 September 2001, as amended by Labour Inspectorate Order No. 4 of 21 March 2002, states that children under the age of 18 are prohibited from work in the activities listed in Annex 1. However, subsection (1) of section 1 of Labour Inspectorate Order No. 4 provides that the prohibition may be lifted subject to a reasoned expert opinion by a legally qualified occupational safety and health professional stating that there is no exposure to risks which might compromise the health and safety of the young person, which must be deposited with the Ministry of Labour and Employment in the district where the activities are carried out. According to the Government, the authorization introduced by Labour Inspectorate Order No. 4 of 21 March 2002 is not an exception to work in dangerous conditions, but permission to work in the activities listed in Labour Inspectorate Order No. 20/2001, following a competent professional evaluation that there is technically no risk in the activity concerned. The new authorization does not mean working in harmful conditions, but only in activities generally held to be potentially harmful but where such harmful conditions have been eliminated as a result of technological innovations and appropriate safety and health measures. The lifting of the prohibition must be based on an opinion which must be deposited in a local branch of the Ministry of Labour and Employment, which allows the actual working conditions to be supervised by the labour auditor-inspector, with the possibility of taking administrative proceedings to suspend such activity or decide on other additional measures. The Government also indicates that the new rule of section 1(1) of Labour Inspectorate Order No. 20/2001 only partly satisfies the requirement of paragraph 3 of Article 3 of the Convention, since it is acknowledged that the Order does not expressly require prior instruction or proper and specific vocational training in the branch of activity concerned. However, there are some important safeguards. Moreover, section 406 of the Consolidated Labour Act provides that the Juvenile Court may authorize the minor (a worker aged from 14 to 18 years) to perform the work referred to in subsection (3)(a) and (b) of section 405 if: (1) the performance has an educational purpose or is an activity which can not be harmful to his moral development; (2) it is certified that the employment of the minor is essential to his own subsistence or that of his parents, grandparents or siblings and does not involve any harm to his moral development. Subsection (3) of section 405 refers to: (a) performance of any kind in variety theatres, cinemas, nightclubs, casinos, cabarets, dance halls and like establishments; and (b) performances in circuses as acrobats, tightrope walkers, gymnasts and like activities.

Concerning subsection (1) of section 1 of Labour Inspectorate Order No. 20/2001, the Committee observes this provision is not in conformity with Article 3, paragraph 3, of the Convention. Firstly, the permission could be allowed for all children under the age of 18 years. Secondly, as indicated by the Government, there is no provision on prior instruction or proper and specific vocational training in the branch of activity concerned. With reference to section 406 of the Consolidated Labour Act, the Committee observes that this provision is not in conformity with Article 3, paragraph 3, of the Convention either. In effect, permission to work could be granted for minors aged from 14 years and above without any provision on prior instruction. The Committee recalls that Article 3, paragraph 3, of the Convention lays down that the competent authority may, after consultation with the organizations of employers and workers concerned, authorize employment or work from the age of 16 years on condition that the health, safety and morals of the young persons concerned are fully protected and that the young persons have received adequate specific instruction or vocational training in the relevant branch of activity. The Committee also recalls that Article 3, paragraph 3, of the Convention authorizes, under strict conditions respecting protection and prior training, the employment or work of young persons between the ages of 16 and 18. Moreover, this provision of the Convention constitutes a limited exception to the general rule of the prohibition of young persons under 18 years of age from performing types of hazardous work. The Committee requests the Government to indicate the measures taken to amend section 1, subsection (1), of Labour Inspectorate Order No. 20 of 13 September 2001 and section 406 of the Consolidated Labour Act, to ensure that only minors between 16 and 18 years of age can be employed in hazardous work and that they would have received adequate specific instruction or vocational training in the relevant branch of activity, as required by Article 3, paragraph 3, of the Convention.

Article 5. Limitation of the scope of application of the Convention. In ratifying the Convention, the Government declared the provisions of the Convention applicable as a minimum to the branches of economic activity or types of undertakings enumerated in Article 5, paragraph 3, of the Convention, that are the following: mining and quarrying; manufacturing; construction; electricity, gas and water; sanitary services; transport, storage and communication; and plantations and other agricultural undertakings mainly producing for commercial purposes, but excluding family and small-scale holdings producing for local consumption and not regularly employing hired workers. In this respect, the Government indicates that the process of ratification of Convention No. 138 was preceded by tripartite consultations in the framework of a committee especially set up for this purpose by Order No. 341 of 27 May 1999 contemplating the requirement of Article 5 of the Convention. It also indicates that, with respect to the provisions of Article 5, paragraph 4, of the Convention, the Federal Constitution prohibits any work by children under the age of 16 years, except for apprentices aged 14 years and above. Thus, although the scope of the Convention is limited, the Brazilian Constitution does not allow any exception to work below the minimum age. The Committee observes that the national legislation of Brazil is actually of general coverage and does not exclude any branches of economic activity. It nevertheless draws the Government’s attention to the possibility offered by Article 5, paragraph 4(b), of the Convention under which any Member which has limited the scope of application of this Convention may at any time formally extend the scope of application by a declaration addressed to the Director-General of the ILO. The Committee asks the Government to provide information on any developments in this regard.

Article 6. Vocational training and apprenticeship. 1. Work in educational and training institutions. The Committee notes that work in educational and training institutions has two components: work experience and educational work. According to Act No. 6.494 of 7 December 1977 and Decree No. 87.497 of 18 August 1982, "work experience" consists of social, vocational and cultural learning activities provided to the student in public and private establishments which have the capacity to provide practical experience as part of the training of the trainee. It only applies to students who are demonstrably attending higher education, vocational education at secondary or higher levels in special education schools (section 1(1) of Act No. 6.494/1977). The work experience must complement the education and training and be planned, executed, monitored and evaluated in accordance with the school curricula, programmes and timetables (section 1(3) of Act No. 6.494/1977). As an educational and training measure, the activity comes under the responsibility of the educational institution responsible for deciding on the subject (section 3 of Decree No. 87.497/1982). Work experience does not entail an employment relationship although it is subject to certain formalities, such as the signing of an undertaking between the student and the party providing the work experience, with the involvement of the educational institution (sections 3 and 4 of Act No. 6.494/1977) except in the case of work experience under the community actions, which does not require the signing of an undertaking between the parties (section 3(2) of Act No. 6.494/1977). Another formal requirement is the existence of a legal instrument between the educational institution and the establishment offering the work experience, as well as personal accident insurance for the student (section 8 of Decree No. 87.497/1982). According to article 7, paragraph XXXIII of the Federal Constitution, work experience may only be provided from the age of 16 years.

As regards educational work, section 68 of the Statute of the Child and Adolescent provides that the social programme based on educational work, under the supervision of governmental or non-governmental non-profit agencies, must provide participating young persons with training conditions to exercise their regular paid activity. Section 68(1) defines it as work activity in which the educational needs relating to personal and social development of the student take precedence over the productive aspect. Subsection (2) states that the remuneration received by the young person for the work performed or participation in the sale of the products of his work does not detract from the educational character. In this respect, the Government indicates that the absence of regulations covering this institution leaves a legal vacuum as a result of which certain distortions of educational work are emerging, so-called social programmes run by non-profit agencies which, on the pretext that they are training the young person, only take on young persons in situations of social risk and direct them to enterprises and public bodies where they carry out work of low, or almost non-existent, value as vocational training and without guaranteeing their labour and social security rights. In a nutshell, these entities become mere intermediaries providing cheap young labour to enterprises, who feel exempted from complying with labour legislation since the young persons are employed in the guise of so-called educational work. To combat this situation, the Government explains that the Ministry of Labour and Employment, through the Labour Inspectorate, is involved with the Labour Prosecution Service in an intensive effort to advise and persuade the parties involved to regularize these inappropriate programmes. The chief instrument for that purpose is to equate the programmes with the institution of apprenticeship. Noting the abovementioned information and the Government’s efforts to regularize inappropriate programmes and equate them with the institution of apprenticeship, the Committee asks the Government to continue providing further information on the practice of educational work, and concrete measures taken to regulate it as well as the results achieved.

2. Apprenticeship. The Committee notes that by virtue of article 7, paragraph XXXIII of the Federal Constitution of 1998, children from 14 years of age may work as apprentices. It also notes that sections 424-433 of the Consolidated Labour Act, as amended by Act No. 10.097 of 2000, regulate the apprenticeship contracts. By virtue of section 428 of the Consolidated Labour Act, the apprenticeship contract is a special employment contract, in writing and for a fixed period of time, the purpose of which is formal technical-vocational training of apprentice workers aged from 14 to 18 years, and which must be registered in an apprenticeship programme provided under the supervision of a qualified and formal technical-vocational training institution. Moreover, this apprenticeship must be compatible with the physical and mental development of the apprentice. The young person, for his/her part, must conscientiously and diligently perform the tasks necessary for that training. Subsection (4) of section 428 lays down that the technical-vocational training consists of theoretical and practical activities, formally organized in progressively more complex tasks performed in the work environment. According to the Government, Act No. 10.097 of 19 December 2000, which amended the provisions of the Consolidated Labour Acts, introduced two innovations: (1) the obligation of all establishments to employ apprentices (section 429), obligation previously limited to industrial and commercial establishments; and (2) the possibility that apprenticeship programmes may be operated by entities not belonging to the national apprenticeship services (section 430), which hitherto had the monopoly of running technical-vocational training courses for apprenticeship schemes. These services are: the National Service for Apprenticeship in Industry (SENAI); the National Service for Apprenticeship in Commerce (SENAC); the National Service for Rural Apprenticeship (SENAR); the National Service for Apprenticeship in Transport (SENAT); and the Social Cooperative Service (SESCOOP).

The Committee notes the information provided by the Government, according to which in cases of warrants in situations contrary to the Federal Constitution and other legislation, the Children and Juvenile Courts adopt the following interpretations: in the absence of an apprenticeship scheme in the municipality, the process of apprenticeship can be implemented directly by the enterprise, without the involvement, guidance, control and supervision of an entity responsible for apprenticeships. The Children and Juvenile Courts may also ignore the detailed activities listed as harmful to young persons, thus ignoring the actual conditions of health and safety in the enterprise. The Committee requests the Government to take the necessary measures to ensure that children of 14 years of age and above involved in apprenticeship will carry out their work under the supervision of a qualified and formal technical-vocational training institution. Furthermore, this work should be compatible with the physical, and mental development of the apprentice, in conformity with Article 6 of the Convention. The Committee also requests the Government to provide information on the practical application of the new legal system of apprenticeship.

3. Consultation with the organizations of employers and workers. The Committee notes the Government’s indication that consultations were not held with employers’ and workers’ organizations on the legal provisions on apprenticeship, work experience and educational work. However, they are legal instruments approved by the Federal Executive Power. The Committee encourages the Government to hold consultations with the most representative organizations of employers and workers regarding the issue of work by children as part of their education and training (such as apprenticeships, work experience and educational work) in the context of the overall policy of eliminating child labour, and provide information on such consultations.

Article 7. Light work. The Committee notes the Government’s indication that the unique exception to work under 16 years of age is to work under apprenticeship schemes which start at the age of 14 years and extends to 18 years. It also notes that no other work activity is permitted before the minimum age of 16 years, except in the case of the participation of children or young persons in public entertainment and related rehearsals or beauty contests. However, the Committee draws the Government’s attention to the possibility offered by Article 7, paragraph 1, of the Convention, under which national laws or regulations may permit the employment or work of persons from 13 years of age in light work, provided that it is not likely to be harmful to their health or development and is not such as to prejudice their attendance at school, their participation in vocational orientation or training programmes approved by the competent authority or their capacity to benefit from the instruction received. It further recalls that, under Article 7, paragraph 3, of the Convention, the competent authority shall determine the activities in which employment or work may be permitted and shall prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken. The Committee asks the Government to provide information on any development in this regard.

Article 8. Artistic performances. The Committee notes that, by virtue of section 149(II) of the Statute of the Child and Adolescent, the judicial authority is responsible for regulating, by order, or authorizing, by warrant: the participation of children and young persons in: (a) public entertainment and related rehearsals; and (b) beauty contests. It also notes that subsection (1) of section 149 provides that the judicial authority shall take into account the following factors, among others: (a) the principles of the Act; (b) special local circumstances; (c) the existence of adequate premises; (d) the normal type of audience at the premises; (e) that the environment is suitable for the participation or presence of children and young persons; (f) the nature of the entertainment. Moreover, according to subsection (2) of section 149, the permits must be granted on an individual, case-by-case basis, and no general permits are allowed. The Committee requests the Government to provide information on the manner in which section 149(II) of the Statute of the Child and Adolescent is applied in practice, providing information on the limitation of working hours and the conditions under which permits are granted.

Article 9, paragraph 1. Appropriate penalties. The Committee notes the detailed information provided by the Government with regard to labour inspection and its role in administrative policy and enforcing the application of the labour law. It notes that the National Council for the Eradication of Child Labour (CONAETI) revised the national legislation that is applicable to Convention No. 138. One of the propositions made by CONAETI is to impose heavier administrative sanctions than those that currently apply with regard to the protection of children and adolescents. The Committee asks the Government to indicate any new developments in this regard.