Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Minimum Age Convention, 1973 (No. 138) - Germany (Ratification: 1976)

The Committee notes the Government’s report and its reply to the comments of the Deutscher Gewerkschaftsbund (German Confederation of Trade Unions) (DGB), dated 12 January 2009.

Article 8(1) and (2) of the Convention. Artistic performances. The Committee previously noted the statement of the DGB that while the legal provisions governing the artistic performances of children are generally sufficient, the determination of protection measures guaranteed to these youth is the responsibility of the individual exercising authority at the time of the application for a permit. The DGB asserted that there are no homogeneous criteria determining these protection measures, so the procedure for issuing permits is very variable. The Committee requested information on the legislative provisions that determine the number of hours of work and the conditions of work for permits granted for the artistic performances of children, in addition to information on the application of these provisions.

The Committee notes the Government’s statement, in its reply to the comments of the DGB, that the standard criteria for the protective measures guaranteed to youth involved in the culture and media sectors are laid down in the Young Persons (Protection and Employment) Act. In this regard, the Government refers to section 6 of this Act which states that for cultural and media events (musical performances, advertising, audio, film and photo sessions), children between 3 and 6 may be authorized to be involved for up to two hours a day (between 8 a.m. and 5 p.m.), and that children over 6 years of age may be authorized to participate for up to three hours a day (between 8 a.m. and 10 p.m.). Participation in theatre productions may be permitted from the age of 6, for up to four hours a day (between 10 a.m. and 11 p.m.). The Government indicates that, based on these specifications, the supervisory authority will determine the specific employment conditions of the child. The Committee also notes the information in the Government’s report that the supervisory authority is required to consult the youth welfare officer in charge of the child prior to authorization. The Government indicates that authorization will only occur if the legal guardian of the child consents in writing, a recent medical certificate is submitted, measures are taken to protect the child against any harm to its physical or mental development, reliable arrangements are made for the care and supervision of the child during the employment activity, the activity is followed by a period of at least 14 hours’ leisure time and the activity does not prevent progress in school.

The Committee further notes the Government’s indication that it surveyed the senior occupational health and safety authorities responsible for the Young Persons (Protection and Employment) Act in each Land on the subject of youth involvement in artistic performances. The Government indicates that 4,683 authorizations for permits were made in 2008, and 4,983 in 2009, though a single authorization may reference numerous children. In addition, the Committee notes the comments from the authorities in various Länder, included in the Government’s report. The authorities in Thuringia and Baden-Wurttemberg indicated increases in the number of children involved in artistic activities, while the authorities in Bavaria, Berlin and Rhineland/Palatinate indicated that the requests for authorizations remained near stable. The authorities in Bremen, Lower Saxony, North Rhine-Westphalia and Thuringia indicated that the authorized daily duration of the activities varied, within the number of hours set by law.

Part V of the report form. Application of the Convention in practice. The Committee previously noted the DGB’s statement that approximately 50 per cent of the work or employment relationships in which children take part violate provisions of the Young Persons (Protection of Employment) Act. The Committee also noted that during the reporting period, the occupational safety and health authorities found only two serious contraventions. It requested the Government to continue to provide information on the application of the Convention in practice.

The Committee notes the information in the Government’s report from the occupational health and safety authorities in charge of ensuring compliance with the Young Persons (Protection of Employment) Act, in 15 of 16 Länder. The Government states that there are no significant changes to report: out of the inspection of 7,096 establishments in 2008 specifically to monitor the compliance with the laws for the protection of children and young persons, 2,213 violations were detected, and out of the inspection of 6,685 establishments in 2009, 1,789 violations were detected. The Government also states that in some respects, the Young Persons (Protection of Employment) Act is stricter than the provisions of the Convention, and therefore these violations do not all represent violations of the Convention. The Government further indicates that the majority of violations concerned non-compliance with the rules governing daily periods of work and rest, the five-day week, rest on Sundays and public holidays, the employment of young persons who had not yet completed compulsory schooling, obligations to inform workers and customers about various aspects of the establishment, and the authorizations required if children are to take part in cultural events. Four Länder uncovered a total of 56 cases in 2008 and 2009 that were sanctioned by warnings or administrative fines, and four instances of serious violations were forwarded to the public prosecutor’s office for criminal proceedings (as the violation endangered a young person’s fitness or health).