Observation (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

Convention (n° 138) sur l'âge minimum, 1973 - Bolivie (Etat plurinational de) (Ratification: 1997)

The Committee takes note of the joint observations of the International Organisation of Employers (IOE) and the Confederation of Private Employers of Bolivia (CEPB) received on 1 September 2017.

Article 2(1) of the Convention. Minimum age for admission to employment or work and labour inspection. In its previous comments, the Committee noted the observation made by International Trade Union Confederation (ITUC) concerning the adoption by the Government of the new Code for Children and Young Persons of 17 July 2014, which amends section 129 of the previous Code by reducing the minimum age for admission to work for children from 14 to 10 years for own-account workers, and to 12 years for children engaged in an employment relationship, under exceptional circumstances. The ITUC observed that these exemptions from the minimum age of 14 years are incompatible with the exceptions set out in the Convention to the minimum age authorized for light work under the terms of Article 7(4), which does not authorize work by children under 12 years of age. The Committee also noted the ITUC’s statement that authorizing children to work from the age of 10 years would inevitably affect their compulsory schooling which, in the Plurinational State of Bolivia, consists of a fixed period of 12 years, that is at least up to the age of 16. The Committee noted the Government’s indication that the new exemptions from the minimum age of 14 years, as set out in section 129 of the Code, can only be registered and authorized on condition that the work undertaken is not a threat to the child’s right to education, health, dignity and general development.

At the 104th Session of the Conference Committee on the Application of Standards in June 2015, the Government representative indicated that the exceptions to the minimum age for admission to employment set out in the new Code were provisional, with the aim of resolving the problem by 2020. He indicated that the Government was not in violation of the Convention, but was seeking to improve the protection of children engaged in work, and that the Code was an exceptional measure to contribute to the application of the public policies intended to eradicate child labour. In this respect, he referred to the adoption of protection measures for child workers, such as the right to a wage equal to the national minimum wage and to social security, the promotion of the right to education and a working week of 30 hours for young persons between the ages of 12 and 14 years working for a third party, with two hours a day being dedicated to studying. Further, the Ministry of Labour, Employment and Social Welfare was giving effect to the Convention through integrated and inter-sectoral routine and complaint-based inspections conducted by the services for the protection of children and young persons, to highlight cases involving work by children under 14 years of age. The Committee notes that the Conference Committee, while duly noting the positive results of the economic and social policies implemented by the Government, urged it to repeal the provisions of the legislation setting the minimum age for admission to employment or work and to immediately prepare a new law, in consultation with the social partners, increasing the minimum age for admission to employment or work in accordance with the Convention. It also requested that the Government provide the labour inspectorate with greater human and technical resources and to provide training for labour inspectors with a view to adopting a more efficient and concrete approach to the application of the Convention.

The Committee notes the joint observations of the IOE and the CEPB according to which the new Code for Children and Young Persons is the consequence of an incorrect application of Convention No. 138. They specify that this modification was introduced without prior consultation with employers’ and workers’ organizations and that it runs counter to the minimum age for admission to work of 14 years, as specified by the Government when ratifying the Convention. The IOE and CEPB also indicate that the high level of the informal economy in the country (70 per cent) favours child labour, as it is not subject to labour inspection. They add that there is no child labour in the formal sector. Finally, they indicate that it is necessary for the Government to reinforce the labour inspection services in the formal and informal sectors.

The Committee deeply deplores the Government’s indication in its report reiterating that the modifications made to section 129 of the Code for Children and Young Persons, which authorizes the competent authority to approve work by children and young persons between the ages of 10 and 14 years in own-account work, and work by children and young persons between the ages of 12 and 14 years for a third party, will remain in place as provisional measures. The Committee once again emphasizes that the objective of the Convention is to eliminate child labour and that it encourages the raising of the minimum age, but does not authorize its reduction once the minimum age has been set. The Committee recalls that the Plurinational State of Bolivia set a minimum age of 14 years when ratifying the Convention, and that the exception to the minimum age for admission to employment set out in section 129 of the Code for Children and Young Persons is not in conformity with this provision of the Convention. The Committee also notes with deep concern the distinction made between the minimum age for own account child workers, which is set at 10 years, and the minimum age for children engaged in an employment relationship, which is 12 years. The Committee noted in its 2012 General Survey on the fundamental Conventions (paragraphs 550 and 551) that it is of the firm view that self-employed children should benefit from at least the same legal protection, especially as many of them work in the informal economy and under hazardous conditions. The Committee finally observes the Government’s indication that there are 90 labour inspectors (four more than in 2012). In this respect, the Committee recalls once again that, according to the 2012 General Survey (paragraph 345), the limited number of labour inspectors makes it difficult for them to cover the whole of the informal economy and agriculture. The Committee therefore strongly urges the Government to take immediate measures to ensure that section 129 of the Code for Children and Young Persons of 17 July 2014 establishing the minimum age for admission to employment or work, including own-account work, is amended in order to bring this age into conformity with the age specified when ratifying the Convention and with the requirements of the Convention, namely a minimum of 14 years. It also requests that the Government strengthen its efforts to reinforce the capacity of the labour inspection services so as ensure that the protection afforded by the Convention also covers children working in the informal economy.

Article 7(1) and (4). Light work. The Committee previously noted that sections 132 and 133 of the Code for Children and Young Persons of 17 July 2014 allows children under the age of 14 years to work, subject to authorization by the competent authority, under conditions which limit their hours of work, do not endanger their life, health, safety or image, and do not interfere with their access to education. The Committee also noted the conclusions of the Conference Committee, according to which these amendments allow all children under 14 years of age to carry out light work without fixing a lower minimum age for admission to such work.

The Committee notes the Government’s indication that sections 131, 132 and 133 of the Code for Children and Young Persons allows children between 10 and 18 years of age to work, subject to the authorization of the competent authority and of parents or guardians, under conditions which limit their hours of work, do not endanger their life, health, safety or image, and do not interfere with their access to education. Although the Government indicates that the Code for Children and Young Persons set a minimum age for the performance of light work, the Committee notes with deep concern that this age is set at 10 years. The Committee once again recalls that, under the terms of the flexibility clause contained in Article 7(1) and (4) of the Convention, national laws or regulations may permit the employment of persons between 12 and 14 years of age, and not 10 years, in light work which 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. The Committee once again urges the Government to take immediate measures to ensure that sections 132 and 133 of the Code for Children and Young Persons of 17 July 2014 are amended in order to establish a minimum age of 12 years for admission to light work, in accordance with the requirements of Article 7(1) and (4) of the Convention.

Article 9(3). Keeping of registers. In its previous comments, the Committee noted that, under the terms of section 138 of the Code for Children and Young Persons, registers for child workers are required in order to obtain authorization for work. The Committee observed that these registers include the authorization for children between the ages of 10 and 14 years to work.

The Committee notes the Government’s indication that Resolution No. 71/2016 created the Information System on Children and Young Persons (SINNA), which registers and contains information on the rights of the child, including information relating to children working on their own account or for a third party. The Committee notes with regret that Resolution No. 434/2016 provides for the inclusion in a register of minors under 14 years of age who are engaged in work. It once again draws the Government’s attention to its comments concerning Article 2(1), under the terms of which no authorization to work may be granted for children under 14 years of age. It also reminds the Government that, under the terms of Article 9(3) of the Convention, national laws shall prescribe the registers which shall be kept and made available by the employer containing the names and ages or dates of birth, duly certified, of persons whom he or she employs or who work for the employer and who are under 18 years of age. The Committee once again requests that the Government take the necessary measures to bring this provision of the Code for Children and Young Persons into conformity with the Convention on these two points, and to provide recent statistics on child labour, disaggregated by age and gender, in particular with regard to children under 10 years of age, as well as children between the ages of 10 and 12 years, and the ages of 12 and 14 years.

The Committee reminds the Government that it may avail itself of ILO technical assistance in order to bring its law and practice into conformity with the Convention.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to supply full particulars to the Conference at its 107th Session and to reply in full to the present comments in 2018.]