Minimum Age Convention, 1973 (No. 138) - Spain (Ratification: 1977)

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 2 of the Convention. Scope of application. In its previous comments, the Committee emphasized that the provisions of the national legislation governing the minimum age of admission to employment for children were not sufficient to guarantee the protection afforded by the Convention to children working on their own account. In this regard, the Government had indicated that, although it considered that the national legislation enables effective controls of work done by young people, it envisaged regulating the work of self-employed persons.

The Committee notes with satisfaction that, pursuant to section 9, paragraph 1 of the Statute 20/2007 of 11 July on self-employed workers, children under 16 years may not work on a self-employed basis or be engaged in professional activity, even within their own families. The Committee also notes that section 8 of the Statute on self-employed workers addresses the issue of the prevention of professional risks. The first paragraph of section 8 provides that public administrations will undertake an active role in the prevention of professional risks of self-employed workers through activities promoting prevention, technical advice, and the monitoring and control of the application of the legislative provisions on the prevention of professional risks by self-employed workers. According to section 8, paragraph 2, of the Statute on self-employed workers, the said administrations must promote training on risk prevention which is specific and adapted to independent work.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the information supplied by the Government in its report. It notes with interest the adoption of Royal Decree No. 306/2007 of 2 March 2007 amending the act on infringements and penalties in  social matters, approved by Royal Decree No. 5/2000 of 4 August 2000, and increases the amount of financial penalties established with respect to employment relationships and the prevention of occupational risks.

Article 2 of the Convention. Scope of application. In its previous comments, the Committee emphasized that the provisions of the national legislation governing the minimum age of admission to employment for children are not sufficient to guarantee the protection afforded by the Convention to children working on their own account. In this respect, the Government indicated that, although it considered that the national legislation enables effective controls of work done by young people, it envisaged regulating the work of self-employed persons. A draft law concerning the status of persons working on their own account was due to be submitted to Congress during 2006, and the question of the minimum age of admission to employment of minors working on their own account was to be taken into consideration in order to settle any doubts on the matter. The Committee requested the Government to supply information on future developments regarding the draft law.

The Committee notes the information supplied by the Government to the effect that a draft law on the status of self-employed workers was submitted to Congress in 2006 and is currently under examination. It also notes the Government’s information to the effect that section 9(1) of the draft law provides that minors under 16 years of age may not work on a self-employed basis or be engaged in professional activity, even within their own families. The Committee hopes that this draft law will be adopted as soon as possible and asks the Government to supply information on all new developments in this respect.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Article 2 of the Convention. Scope. In its previous comments concerning the minimum age for admission to employment of young persons working on their own account, the Committee emphasized that section 7.1(b) of the General Social Security Act and section 3 of Decree No. 2530/1970 of 20 August 1970 are not intended to limit access to employment or work by persons under 16 years of age, including own-account work, as required by the Convention, but provide that over the age of 18 all self-employed workers have to be affiliated to the social security system. It noted the Government’s information that, even though there are no provisions in Spanish legislation explicitly prohibiting work on their own account by young persons under 16 years of age, the age for end of compulsory education established at 16 years by section 17(a) of the 1990 Education Act is a firm, although indirect, measure for effectively controlling work by young persons. In this regard, the Committee expressed the view that it was important for the leaving age for compulsory schooling to coincide with a minimum age for admission to employment or work, as is the case in Spain, in order to restrict the access of young persons to employment or work. The Committee also stated, however that these measures are not sufficient to guarantee the protection intended by the Convention and requested the Government to indicate the measures it envisaged taking to ensure that national legislation provided that no person under the specified age, namely 16 years, would be admitted to employment or work in any branch of activity or occupation, especially where such persons are working on their own account.

The Committee notes the information supplied by the Government to the effect that, although it considers that current national legislation allows effective control of work by young people, it envisages regulating own-account workers. Hence, on the basis of a report drawn up by a group of experts which considered the matter, a draft law concerning the status of persons working on their own account will be submitted to Congress during 2006. The issue of minimum age for admission to employment of young people working on their own account will be taken into consideration in order to settle any doubts on the matter. The Committee requests the Government to supply information on future developments regarding the draft law on the status of persons working on their own account.

Article 3. Determination of hazardous types of work. With reference to its previous comments, the Committee notes the information supplied by the Government that no regulations regarding section 27.2 of Act No. 31/1995 on the prevention of risks at work has been adopted and that the list of types of work prohibited for young persons under of the age of 18 years which is contained in the Decree of 26 July 1957 is still in force.

Part V of the report form. The Committee notes the information provided by the Government on the activities of the inspectorate of labour and social security. It notes that, in regard to control of the admission of under 16-year olds to work and the protection of the safety and health of under 18-year olds, a total of 751,672 inspections were conducted in the years 2003-04.

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

The Committee notes the information provided by the Government in its reports. It also notes with interest the adoption of Decree No. 138/2000 of 4 February, issuing regulations on the organization and functioning of the inspectorate of labour and social security, and Decree No. 5/2000 of 4 August 2000, amending the Act respecting violations and sanctions in social matters.

Article 2 of the Convention. Scope of application. With reference to its previous comments concerning the minimum age for admission to employment of young persons working on their own account, the Committee notes that the Government refers once again to section 7.1(b) of the General Social Security Act, under which self-employed workers over 18 years of age are covered by the social security system, whether or not they own individual or family enterprises. It also notes that the Government refers once again to section 3 of Decree No. 2530/1970 of 20 August 1970 regulating the social security scheme for self-employed workers and sets at 18 years the minimum age for affiliation to this scheme. In its report in 2002, the Government indicates that even though there does not exist in Spanish legislation a provision explicitly prohibiting work by young persons under 16 years of age on their own account, the compulsory school-leaving age established at 16 years by section 17(a) of the Act on the education system of 1990 is a firm, although indirect measure, for effectively controlling work by young persons. Indeed, work performed by a young person on her or his own account requires that person to furnish personal, habitual and direct services, and the obligation to attend school up to the age of 16 years does not permit access to this type of work.

The Committee once again reminds the Government that the Convention applies to all sectors of economic activity and that it covers all types of employment or work, whether or not there is a contractual employment relationship. In its previous comments, the Committee had emphasized that the social security provisions referred to by the Government are not intended to limit access to employment or work by persons under 16 years of age, including own-account work, as required by the Convention, but provide that over the age of 18 all self-employed workers have to be affiliated to the social security system. The Committee also considers that it is important for the compulsory school-leaving age to coincide with the minimum age for admission to employment or work so as to limit the access of young persons to employment or work, as is the case in Spain. The Committee however considers that these measures are not sufficient to guarantee the protection envisaged by the Convention. Under these conditions, the Committee requests the Government to indicate the measures adopted or envisaged to include in the national legislation a provision that no person under the age specified, namely 16 years, shall be admitted to employment or work in any branch of activity or occupation, especially in cases where such persons work on their own account.

Article 3. In its previous comments, the Committee noted that until the Government issues regulations under section 27(2) of Act No. 31/1995 on the prevention of risks at work, under which the Government must establish restrictions on the hiring of young persons under 18 years of age for work involving specific risks, the Decree of 26 July 1957 remains in force. It also noted that it was planned to update the provisional list of types of work prohibited for young persons under the age of 18 years, which is contained in the Decree of 26 July 1957. The Committee notes the information contained in the Government’s report of 2002 to the effect that no regulations have been adopted under section 27(2) of Act No. 31/1995 on the prevention of risks at work and that the provisional list of types of work prohibited for young persons under 18 years, contained in the Decree of 26 July 1957, has not been updated. This list is therefore still in force. The Committee once again requests the Government to inform it of any developments in this respect.

Part V of the report form. The Committee notes the information provided by the Government on the activities of the inspectorate of labour and social security. It notes that during 2002, the inspection services inspected 380,194 workplaces and reported 61 violations relating to the access to employment of young persons and 58 violations relating to the types of work prohibited for such persons. The Committee requests the Government to continue to keep it informed of the application of the Convention in practice, and to provide statistics on the employment of persons under 16 years of age, the results of the work of the inspection services and indications of the number and nature of the violations reported.

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

The Committee notes with satisfaction the declaration communicated by the Government, in accordance with Article 2, paragraph 2, of the Convention,informing the Director-General that the minimum age for admission to employment or work in Spain has been raised to 16 years.

The Committee is also addressing a request directly to the Government on other matters.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee takes note of the information supplied by the Government in its report. It asks the Government to provide additional information on the following points.

Article 2 of the Convention.  Further to its previous comments concerning the minimum age of self-employed and freelance workers, the Committee notes the Government’s repeated reference to section 7.1(b) of the General Social Security Act, under which self-employed or independent workers over 18 years of age are included in the social security system whether or not they own individual or family undertakings. The Committee also notes that Decree No. 2530/1970 of 20 August 1970 regulating the special social security scheme of self-employed or freelance workers establishes, in section 3, that the minimum age for membership of the scheme is 18 years. In the Government’s view, these provisions suffice to prevent admission to self-employment or freelance work until the age of 18.

The Committee notes that the minimum age requirement is the same for family enterprises as for other categories of employment: if the family member is a paid employee, the minimum age for admission to employment is 16 years in accordance with section 6 of the Workers’ Statute; if the family member is not a paid employee and works regularly, personally and directly for the enterprise, he will be treated as an independent worker upon attaining the age of 18.

The Committee takes note of this information, and particularly of the direct enforcement of the Convention by judges and courts. However, with reference to its previous comments the Committee would again recall that in this Convention the term "employment or work" covers all economic activity regardless of the formal employment status of the person concerned (General Survey of 1981, paragraph 61), whether or not it is declared or registered, for instance, for the purposes of social security. In its previous comments, the Committee took the view that the social security provisions referred to by the Government in its report are not intended to limit access to any employment or work, including self-employment, by persons under 15 years of age as the Convention requires, but set an age limit of 18 years for all self-employed or freelance workers for purposes of their membership of the social security scheme. The Committee, therefore, once again asks the Government to consider adopting measures to ensure that no minors are admitted to employment or work in any branch of economic activity or any occupation, including self-employment.

With reference to its previous comments, the Committee also recalls that although at the time of ratification of the Convention the minimum age specified in pursuance of Article 2, paragraph 1, was 15 years, under the Workers’ Statute both the age of completion of compulsory schooling and the minimum age for admission to employment have been raised to 16 years since then. The Committee once again draws the Government’s attention to the fact that, under Article 2, paragraph 2, it may submit a further declaration specifying that the minimum age is 16 years.

Article 3.  The Committee notes the information supplied by the Government concerning the jobs prohibited for persons under 18 years of age. It notes that, until the Government issues regulations under section 27.2 of Act No. 31/95 on the prevention of risks at work, under which the Government must establish restrictions on the hiring of young people under 18 years of age in jobs that involve specific risks, the Decree of 26 July 1957 is still in force with regard to jobs prohibited for minors. The Committee also notes that the provisional list of jobs prohibited for young people under the age of 18, included in the Decree of 26 July 1957, is to be updated. The Committee once again asks the Government to provide information on any new developments in this area.

Part V of the report form.  The Committee notes the information supplied by the Government concerning the activities of the Labour and Social Security Inspectorate and the results obtained with regard to the admission to employment of young people and jobs prohibited for minors. It notes that, between 1996 and 1999, the above inspectorate carried out 2,027 visits related to the admission of young people to employment and registered 481 infringements, while during the same period it carried out 861 visits relating to prohibited jobs and registered 145 infringements.

The Committee also notes that, under sections 48.2 and 49.4 of Act No. 31/95 on the prevention of risks at work, employment in jobs prohibited by the Government for young people under 18 years of age may be treated as a very serious offence punishable by a penalty of up to 100 million pesetas.

The Committee requests the Government to continue to send information on the application of the Convention in practice, including the outcome of inspection visits and the measures adopted as a consequence.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

1. Article 2 of the Convention. With reference to the previous comments concerning the minimum age of own-account or self-employed workers, the Committee notes the Government's repeated reference to section 7.1(b) of the General Social Security Act, under which own-account or self-employed workers over 18 years of age, whether they own individual or family undertakings or not, are included in the social security system. The Government considers that this provision serves for preventing the access to own-account employment or self-employment of young people up to 18 years of age.

The Committee recalls, however, that the term "employment or work" in this Convention covers all economic activity regardless of the formal employment status of the person concerned (General Survey of 1981, paragraph 61), whether or not it is declared or registered, for instance, for the purposes of social security. It considered that the social security provisions cited by the Government in its report are not intended to limit access to any employment or work, of persons under 15 years of age as the Convention requires, but provided that, beyond an age fixed at 18 years, all own-account or self-employed workers must be covered by social security schemes. The Committee therefore asks the Government to indicate the measures taken or contemplated to ensure that no one under the specified minimum age is admitted to employment or work in any occupation including own-account or self-employed workers. It would also be grateful to the Government if it would indicate how the minimum age is applied in family undertakings, excluded from the scope of the Workers' Charter (section 1(3)(e)).

2. Article 3, paragraph 2. In its observations made in 1993, the Trade Union Confederation of Workers' Committees (CC.OO.) pointed out that this provision concerning the determination of the types of hazardous work prohibited for under-18s was not complied with because there was only the decree of 26 July 1957 on the matter, which they considered obsolete. The Committee has noted that the Government referred in its reply received in March 1994 to the same decree and stated that its implementation is supervised by the Inspector of Labour and Social Security.

The Committee notes that, in its latest report, the Government states that Act No. 31/1995 of 8 November 1995 on the prevention of labour risks was adopted with the view to incorporating Directive 89/391/EEC on the matter into the Spanish judicial system, and that the EC Directive 94/33 (22 June 1994) on the protection of young persons at work has also to be incorporated. It notes that, under section 27(2) of Act No. 31/1995, the Government should establish limitations to the engagement of persons younger than 18 years old in work that represents specific risks. The Committee requests the Government to indicate whether any new texts have been adopted to replace the 1957 decree, and to supply information on any development in this connection.

3. The Committee recalls that, while the minimum age of 15 years was specified at the time of ratification of the Convention in accordance with Article 2, paragraph 1, both the age of completion of compulsory schooling and the minimum age for admission to employment under the Workers' Charter have since been raised to 16 years old. It would draw the Government's attention to the possibility of making a further declaration under Article 2, paragraph 2, to specify the minimum age of 16 years.

4. The Committee notes the Government's statement that the competence of executing labour legislation has been transferred to a further ten autonomous communities. It hopes that the Government will continue to supply information on the application of the Convention in practice, including the inspection results and measures taken accordingly.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee takes note of the observations made by the Trade Union Confederation of Workers' Committees (Confederación sindical de comisiones obreras - CC.OO.) concerning the application of Article 3(2) of the Convention. It would be grateful if the Government would make its own comments on these observations. It also recalls its previous direct request which read, in part, as follows:

Article 2 of the Convention. With reference to the previous comments, the Government stated in its report that limits on access to work on grounds of age are imposed in particular by section 7.1(b) of the General Social Security Act, under which own-account or self-employed workers over 18 years of age, whether they own individual or family undertakings or not, are included in the social security system, and that consequently the age of access to own-account employment or self-employment is 18 years. Furthermore, under the provisions of section 4.1 of the Trade Code, legal capacity to engage habitually in trade is determined by civil majority, which is fixed at 18 years. The Government pointed out that in its opinion the most effective way to combat the employment of minors is to make schooling compulsory up to the minimum age for admission to employment. In this connection the Government referred to Organization Act 1/1990 of 3 October 1990 on the general organization of the education system, which fixes the duration of compulsory schooling at 10 years; the children start school at age 6 years and complete their studies at age 16 years.

The Committee has taken due note of this information and in particular of the provisions of the Trade Code which make trader status subject to the attainment of legal majority at 18 years of age. It considered, however, that the social security provisions cited by the Government in its report are not intended to limit access to any employment or work, including that done on own account, for persons under 16 years of age as the Convention requires, but provide that, beyond an age limit fixed at 18 years, all own-account or self-employed workers must be covered by social security.

The Committee asks the Government to indicate the measures taken or contemplated to ensure that no one under the specified minimum age is admitted to employment or work in any occupation.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the promulgation of Act No.8/1988 of 7 April on offences against social order and penalties therefor, which classifies a breach of the provisions concerning the work of minors laid down in section 6 of the Workers' Charter as a very serious offence. Under section 37, paragraph 4, of the Act in question, the perpetrators of very serious offences are liable to a fine of 200,000 to 15 million pesetas.

Article 2 of the Convention. With reference to the previous comments, the Government states in its report that limits on access to work on grounds of age are imposed in particular by section 7.1.(b) of the General Social Security Act, under which own-account or self-employed workers over 18 years of age, whether they own individual or family undertakings or not, are included in the social security system, and that consequently the age of access to own-account employment or self-employment is 18 years. Furthermore, under the provisions of section 4.1 of the Trade Code, legal capacity to engage habitually in trade is determined by civil majority, which is fixed at 18 years. The Government also points out that in its opinion the most effective way to combat the employment of minors is to make schooling compulsory up to the minimum age for admission to employment. In this connection the Government refers to Organisation Act 1/1990 of 3 October 1990 on the general organisation of the education system, which fixes the duration of compulsory schooling at 10 years; the children start school at age 6 years and complete their studies at age 16 years.

The Committee takes due note of this information and in particular of the provisions of the Trade Code which make trader status subject to the attainment of legal majority at 18 years of age. It considers, however, that the social security provisions cited by the Government in its report are not intended to limit access to any employment or work, including that done on own account, for persons under 16 years of age as the Convention requires, but provide that, beyond an age-limit fixed at 18 years, all own-account or self-employed workers must be covered by social security.

The Committee asks the Government to indicate the measures taken or contemplated to ensure that no one under the specified minimum age is admitted to employment or work in any occupation.

Direct Request (CEACR) - adopted 1988, published 75th ILC session (1988)

1. Article 2 of the Convention. The Committee notes from the statement made by the Government in reply to its previous direct request, that while work performed by a person on his/her own account is not subject to the Workers' Charter, the minimum age for such work is 18 as the Social Security Scheme especially applicable to independent workers covers only workers over 18. The Committee observes that work on their own account of persons below the minimum age specified under the Convention (i.e. 15 years) is not legally prohibited. The Committee hopes that the next report will indicate the measures taken or envisaged to establish such prohibition in accordance with Article 2, paragraph 1, of the Convention.

2. The Committee has noted the Government's statement that the most effective way, albeit indirect, of controlling the work of children is compulsory schooling until the minimum age of admission to employment, i.e. 16 years of age. The report adds that such compulsory schooling is one of the objectives of the forthcoming reform of the educational system, and that in practice, 80 per cent of children of less than 14 and 90 per cent of children of less than 15 are in schools. The Committee would be grateful if in its next report the Government would indicate what is the age of completion of compulsory schooling fixed by the national legislation, as Act 8/1985 of 3 July 1985 regulating the right to education does not contain any provision fixing this age. It also requests the Government to continue to supply information on the progress made in extending schooling in practice to all children concerned.

3. The Committee has noted from the information supplied in reply to its request on the practical application of the Convention, that in the coming quadrennium one of the priority objectives is to increase the supervision activities of the labour inspectorate, which will enable it to detect violations to the provisions relating to the employment of children and young persons. The Committee hopes that the next report will contain detailed information on the measures taken to ensure the effective observance of the national legislation, including details of inspection visits made, of the violations noted and of the sanctions imposed, together with any documents or reports on the difficulties encountered, in accordance with point V of the report form.