Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

Minimum Age Convention, 1973 (No. 138) - Romania (Ratification: 1975)

The Committee notes the information provided by the Government in its reports in reply to its previous observation. It notes the adoption of Act No. 53/2003 issuing the Labour Code, published in the Official Gazette of 5 February 2003, as well as the Ordinance of the Minister of Labour and Social Solidarity No. 508/2002 and the Ordinance of the Minister of Health and the Family No. 933/2002 issuing general labour protection standards, published in the Official Gazette of6 December 2002. The Committee requests the Government to provide information on the following points.

Article 2, paragraph 1, of the Convention. Scope of application. The Committee notes that under the terms of section 2, the Labour Code applies only to persons employed on the basis of a labour contract. The Labour Code therefore excludes work performed outside any contract. However, the Convention covers all forms of employment or work, whether or not there exists a contract of employment and whether or not it is remunerated. The Committee therefore requests the Government to provide information on the manner in which protection is afforded to children carrying out an economic activity that is not covered by a labour relationship, such as work on their own account.

Article 3, paragraph 1. Age of admission to hazardous work. The Committee notes section 13(4) of the Labour Code, which provides that admission to jobs involving arduous or hazardous work is not possible until the age of 18 years. It reminds the Government that Article 3, paragraph 1, of the Convention prohibits the admission of young persons under 18 years of age to employment or work that is likely to jeopardize their health, safety or morals. These conditions appear to be tighter than the text of section 13(4) of the new Labour Code, which does not prohibit admission to employment or work that is likely to jeopardize the morals of the young person. The Committee therefore requests the Government to indicate the measures taken or envisaged to bring the legislation into conformity with the Convention on this point.

Paragraph 2. Determination of types of hazardous work. The Committee notes that section 184(1) of the General Labour Protection Standards provides that young persons shall be protected against specific risks to their health, safety, development, risks arising out of their lack of experience, inadequate understanding of existing risks or the fact that young persons are still developing. It also notes with interest that section 125 of the Labour Code prohibits night work by young persons under 18 years of age. The Committee notes the information contained in the Government’s report to the effect that section 475 of the General Labour Protection Standards prohibits the employment of young persons under 18 years of age on painting work involving the use of basic lead carbonate, lead sulphate or red lead and all other products containing these pigments. The Government also adds in its report that section 168 of the General Labour Protection Standards determines for young persons between 16 and 19 years of age the maximum weights to be lifted, carried, pulled or pushed in relation to age and gender. The Committee notes with interest that section 184(2) of these protection standards prohibits certain hazardous types of activities, such as harmful exposure to toxic and carcinogenic agents, radiation, activities involving a risk of accidents that the young person cannot identify, placing them in danger through exposure to heat or extreme cold, noise and vibrations, as well as prohibiting activities involving harmful exposure to certain biological and chemical agents, and to other activities (the slaughter of animals, the handling of explosives, risks of electrocution, etc.).

Paragraph 3. Admission to hazardous types of work from the age of 16 years. The Committee notes that section 185 of the General Labour Protection Standards provides that permits to carry out hazardous types of activities determined by the law may be issued for young persons where these activities are indispensable for their vocational training, and on condition that their protection, safety and health are ensured by the supervision of a competent person. The Committee reminds the Government that Article 3, paragraph 3, of the Convention permits exceptions for young persons only from the age of 16 years and on condition that their health, safety and morals are fully protected and that they have received adequate specific instruction or vocational training in the relevant branch of activity. It requests the Government to indicate the age of young persons for whom such exceptions may be granted and to provide information on the application in practice of section 185 of the General Labour Protection Standards.

Article 6. The Committee notes that section 199(2) of the Labour Code provides that employees aged at least 16 years may conclude a vocational training contract if they do not have sufficient skills to allow them to remain with their employer. It also notes section 205 of the Labour Code, which defines apprenticeship contracts, and section 207 of the Labour Code, which provides that any young person without vocational skills and who has not reached the age of 25 years may be employed as an apprentice. The Committee recalls in this respect that Article 6 of the Convention excludes from its application work done by persons of at least 14 years of age in enterprises, where such work is carried out in accordance with conditions prescribed by the competent authority and is an integral part of education or training. The Committee requests the Government to indicate whether a minimum age has been set for apprenticeship and, if so, to provide a copy of the relevant provision. The Committee also requests the Government to indicate whether consultations have been held with the organizations of employers and workers concerned with regard to the conditions governing work during apprenticeship and for the purposes of vocational training.

Article 7, paragraph 2. Light work and attendance at school. The Committee notes section 13 of the Labour Code, which provides that a young person of 15 years of age may conclude a labour contract with the agreement of her or his parents or legal representatives for activities that are appropriate for her or his development, knowledge and skills, where the young person’s health, development and vocational training are not endangered. The Committee reminds the Government that Article 7, paragraph 2, of the Convention provides that national laws or regulations may permit the employment of persons in light work or the performance of such work by persons who are at least 15 years of age but have not yet completed their compulsory schooling, provided that such work is not such as to prejudice their attendance at school or their capacity to benefit from the instruction received. The Committee therefore requests the Government to indicate the measures adopted or envisaged to include in the national legislation the condition that light work shall not be such as to prejudice the school attendance of young persons under 15 years of age who are engaged in work.

Paragraph 3. Determination of light work. The Committee notes section 109(2) of the Labour Code, which provides that, for young persons under 18 years of age, working hours are six hours a day and 30 hours a week. Section 130 of the Labour Code provides that young persons under 18 years of age shall benefit from a lunch break of at least 30 minutes where the daily working hours do not exceed four and a half hours. Finally, section 142 of the Labour Code provides that young persons under 18 years of age shall be granted supplementary annual leave of a maximum of three days. The Committee recalls that Article 7, paragraph 3, of the Convention provides that the competent authority shall determine the activities in which employment or work may be permitted. The Committee requests the Government to indicate whether types of light work have been determined and, if so, to provide a copy of the corresponding provision. If not, the Committee requests the Government to take the necessary measures for this purpose and to provide information thereon. Finally, the Committee is of the opinion that the working hours set for the performance of light work (six hours a day and 30 hours a week) are too many to allow attendance at school. It therefore requests the Government to provide information on the application of this provision in practice.

Article 9, paragraph 1. Penalties. The Committee notes that section 276(1)(d) of the Labour Code and section 4 of Act No. 130/1999 respecting protective measures for employees provide for sanctions in the event of violation of the provisions relating to age or the utilization of a young person to perform prohibited activities, and the obligation to conclude an individual employment contract in writing. The Committee takes due note of the information contained in the Government’s report that, in the event of the failure of the employer to comply with the legislation respecting young persons, labour inspectors impose fines and, where appropriate, refer the matter to the competent authorities.

Paragraph 2. The Committee notes with interest that section 254 of the Labour Code provides that the application of general and specific rules in the fields of industrial relations and occupational safety and health is under the supervision of the labour inspectorate, a specialized body of the central public administration, under the authority of the Minister of Labour and Social Solidarity.

Article 9, paragraph 3. Employers’ registers. The Committee notes that section 34(1) of the Labour Code establishes the obligation for employers to keep a general register of employees. Section 34(3) of the Labour Code specifies that this register shall contain all the information concerning the identification of each employee and the conditions of the contract of employment. The Committee notes that section 34(7) of the Labour Code provides that a model of the general register for employees, and of any other element relating to the register of employees, shall be established by decision of the Government. The Committee recalls that Article 9, paragraph 3, of the Convention provides that national laws or regulations or the competent authority shall prescribe the registers or other documents which shall be kept and made available by the employer; such registers or documents shall contain the names and ages or dates of birth, duly certified wherever possible, of persons employed or who work for the employer and who are less than 18 years of age. The Committee therefore requests the Government to indicate whether a model register and/or regulations respecting such registers have been established by government decision and, if so, to provide a copy. It also requests the Government to indicate the information concerning the identification of employees which has to be contained in the register, and particularly whether the employer is under the obligation to include the age or date of birth of the persons employed who are less than 18 years of age.

Article 1 (in conjunction with Part V of the report form). In its previous observation, the Committee noted the establishment of the National Agency for the Protection of the Rights of the Child by Emergency Order No. 192/1999. It requested the Government to provide further information concerning the measures taken and action carried out by the National Agency with a view to the progressive elimination of child labour, and particularly on the application of the provisions of the Convention in practice. The Committee takes due note of the information contained in the Government’s report in 2002 according to which the National Agency for the Protection of the Rights of the Child and the International Foundation for the Child and the Family have formulated a programme of action to combat child labour, including two different approaches. These consist, firstly, of the development of the institutional capacities of the Specialized Public Services for the Protection of the Child (SPSPE) through training courses for specialists and the introduction of supervisory and coordinating machinery. Secondly, they focus on increasing the awareness of a broader public, including children, parents and community leaders, to understand the concept of child labour and its consequences on the development of children. The Committee notes the information provided by the Government in its report that the direct beneficiaries of the programme are children who work, including children working in the street, as well as parents and community representatives. The Government adds in its report that, during the period 2001-04, the labour inspectorate carried out a campaign with a view to increasing the degree of awareness of employers of child labour and the necessity to comply with the relevant legal provisions with a view to the progressive elimination of the worst forms of child labour. The Committee also notes with interest the information contained in the Government’s report that, in order to improve the capacities of labour inspectors, the labour inspectorate launched a programme with the technical and financial assistance of ILO/IPEC. The Committee once again requests the Government to provide information on the application of the Convention in practice, including, for example, statistics on the employment of children and young persons, extracts from the reports of the inspection services and information on the number and nature of the violations reported.