Caso individual (CAS) - Discusión: 2018, Publicación: 107ª reunión CIT (2018)

Convenio sobre la edad mínima, 1973 (núm. 138) - Bolivia (Estado Plurinacional de) (Ratificación : 1997)



A Government representative, Minister of Labour, Employment and Social Welfare, indicated that the Plurinational State of Bolivia was appearing before the Committee because in 2014 a new Code for Children and Young Persons had been adopted with a much more protective and comprehensive vision for children and young persons. In response to an express request from some sectors of society, self-employed work by children had been recognized on an exceptional basis with a view to affording them better protection, thereby acknowledging a reality which tended to be ignored. Section 129 of the Code for Children and Young Persons set a minimum age for work of 14 years. On an exceptional basis, Defenders of Children and Young Persons could authorize work on their own account by children or young persons aged between 10 and 14 years, and work for another person by young persons aged between 12 and 14 years, on condition that it did not prejudice their right to education, was not hazardous, prejudicial to their dignity and overall development, and was not explicitly prohibited by law. The Committee of Experts had issued observations on that provision in 2015 and 2017, leading to the present discussion within the Conference Committee. Within the framework of the separation of powers, on 21 July 2017, the Plurinational Constitutional Court had issued ruling No. 0025/2017, declaring section 129.II of the Code for Children and Young Persons and other related articles (sections 130.III; 131.I, III and IV; 133.III and IV; and 138) unconstitutional. As a result, the reference to the exceptional age of 10 years for admission to work was no longer valid. The ruling was binding and compulsory, and was derogatory in effect (in accordance with article 203 of the Political Constitution and article 78.4 of the Code of Constitutional Procedure). On that basis, he considered that there could be no doubt that the provisions to which the Committee of Experts referred had been explicitly derogated. The minimum age for work of 14 years was in force, in accordance with section 129.I of the Code for Children and Young Persons, without exceptions, apart from those set out in the Convention. It should be noted that the ruling of the Constitutional Court made explicit reference to the Convention as an element in the findings relating to constitutionality, considering that Bolivia complied with its international commitments. In order to eradicate child labour from the country effectively, in addition to the legal framework, institutional action had been undertaken by labour directors and inspectors, based on three strategies: (i) a Prevention Strategy, through the development of capacities for the application of fundamental rights aimed at children and young persons in educational establishments, parents, teachers, workers and employers; (ii) an Inspection Strategy, within the framework of which labour inspections were carried out, including routine and complaint-based inspections in places where children and young persons were working; and (iii) a Strategy of direct action for the physical protection of children and young persons engaged in work, in the context of which hearings were held to restore their fundamental and labour rights. Moreover, work by young persons was governed by Ministerial Resolution 442/04, which regulated the rights and obligations of adolescent workers (between 14 and 18 years of age) and established guarantees for labour, health protection and occupational safety and rights to food, recreation and training, and imposed sanctions for offences involving failure to comply with standards protecting adolescent workers.

The Ministry of Labour, Employment and Social Welfare (MTEPS), through its Fundamental Rights Unit, had begun to implement a system of temporary mobile offices in remote areas where no permanent MTEPS offices existed, with the principal objective of restoring the rights of workers. If complaints were received, inspections were carried out, hearings were held, information was provided and capacity-building action was undertaken for the application of the fundamental labour rights of children, young persons, parents and the population in general. In 2016 and 2017, some 26 temporary mobile offices had been set up in rural towns in the Oriente and Chaco Boliviano. In addition, within the framework of the Patriotic Agenda 2025, the Economic and Social Development Plan (PDES) and the Global State Planning System, the Government had established general policies for the integrated development of the State on the basis of the Vivir Bien (living well) vision. One of the objectives of the PDES was the elimination of the causes of child labour and adolescent work and labour exploitation. In order to reduce child labour by 2025, the Government had set itself the task of making progress in at least eight areas (eradication of extreme poverty, the socialization and universalization of services, health, education and sport, productive sovereignty with diversification, and food sovereignty). Child labour was the consequence of the economic and social policies that had prevailed in the country up to 2005, stemming from a colonial legacy of discrimination, violent dictatorships, and neoliberal policies that favoured protecting the interests of the oligarchy over the interests of the people. Those models had resulted in high levels of inequality and extreme poverty which, up to 2005, had affected almost 40 per cent of the population, and over 60 per cent of the population in rural areas. Until 2004, levels of access to education, housing, basic services and decent work had been very low. Since 2005, the Government, under the leadership of President Evo Morales Ayma, had been implementing a model of inclusive development with the objective of eliminating historical inequalities and eradicating poverty, with a view to eliminating the roots of the fundamental causes of child labour. With this objective, an integrated, social, community and productive model of development had been promoted, in which public, private, community and social roles coexisted and complemented one another in order to reduce poverty and promote well-being. Thanks to that model, child labour had fallen 50 per cent from 2008 to 2016, according to the Survey of Children and Young Persons carried out by the National Statistical Institute. Moreover, the number of labour inspections had grown exponentially, and policies such as mobile offices to prevent child labour and restore rights had been taken forward, in coordination with the relevant judicial authorities. Since 2005, the inclusive economic model which placed the economy at the service of social development had succeeded in: (1) reducing extreme poverty from 38.2 per cent in 2005 to 17.9 per cent in 2017; (2) reducing inequality exponentially (in 2005, incomes among the richest population group had been 128 times higher than among the poorest); (3) reducing the Gini index from 0.60 in 2005 to 0.48 in 2014; (4) ensuring that the unemployment rate (4.48 per cent) was one of the lowest in the region; (5) increasing the minimum wage by more than 300 per cent between 2005 and 2018. The wage level and productive investment policies, which had generated greater internal demand, had also been very beneficial for the private sector, where earnings had increased fourfold since 2005. All of that progress was reflected in an improvement in the economic and living conditions of parents and children; and (6) building over 4,000 educational units. The Plurinational State of Bolivia was among the countries with the highest levels of primary school attendance in the region. Various programmes were being implemented at the national and local levels, such as the Juancito Pinto voucher and the Juana Azurduy Padilla voucher for mothers and children, both administered by central Government, and other social programmes implemented through local initiatives, such as school breakfast programmes and local monetary or other incentives devised by different agencies at state level to meet labour, education, health and environmental needs, within the framework of the Plurinational System for the Integrated Protection of Children and Young Persons (SIPPROINA). The result of combined public investment was that, since 2005, the school drop-out rate in primary education had been reduced from 4.5 to 2 per cent, while also achieving the result of over 41,000 children not dropping out of school and an increase of 40,000 in the numbers obtaining their baccalaureate, with a gender balance in addition. The quality of education had also been improved substantially. The number of stable primary school teachers had been increased by 15 per cent (more than 15,000 temporary teachers had been given long-term posts) and a model of inclusive education had been introduced which had been recognized and welcomed by various international bodies. The population also benefited from better access to health care. Over 1,000 health-care establishments had been established; in 2005 there had been only 2,800. The infrastructure had been boosted with new occupational equipment. All of that progress had had a very positive effect on child health. Between 2008 and 2016, there had been a reduction of almost 50 per cent in chronic malnutrition among children under 5 years of age, which had been recognized as a rapid reduction by the World Health Organization. Furthermore, over the past eight years, infant mortality had more than halved, thanks to improvements in prenatal and perinatal care. Those achievements were the result of public and social investment that had increased ninefold since 2005, placing the Plurinational State of Bolivia top in the region in terms of public investment, to which it allocated 12 per cent of its GDP. Finally, he emphasized that, as a result of the inclusive economic model, the middle class had increased by over 3,000,000 persons between 2005 and 2017 and that 58 per cent of the population had an average income which enabled them to “live well”.

The Worker members recalled that it was the second time in recent years that the Committee had discussed this case. On both occasions, the case had been double footnoted by the Committee of Experts, which had repeatedly noted with concern the situation of child labour in the country. In its conclusions in 2015, the Conference Committee had called on the Government to undertake legislative reform in consultation with the social partners in order to increase the minimum age for admission to employment, and to allocate the labour inspectorate with more human and technical resources. The Committee had also invited the Government to avail itself of ILO technical assistance. They noted that the Constitutional Court had in the meantime declared unconstitutional section 129 of the Code for Children and Young Persons, which exceptionally authorized own account work as from the age of 10, and work in an employment relationship from the age of 12. The Plenary Chamber of the Constitutional Court had decided to declare the unconstitutionality of this provision since it was “incompatible and contradictory” with the Political Constitution of the State, the Convention on the Rights of the Child and Convention No. 138. They congratulated the Constitutional Court for this decision drawing on the international legal obligations of the Plurinational State of Bolivia. The Government should now take measures promptly in order to bring its legislation into line with the Convention. While the Convention allowed ratifying States whose economy and educational facilities were insufficiently developed to invoke the flexibility built into Article 2(4) of the Convention to specify a minimum age of 14 years, the instrument by no means allowed ratifying States to go below this threshold. In fact, ratifying States were expected to progressively raise the general minimum age to 16 years, and to eradicate child labour. The Convention provided that the specified minimum age could not be less than the age of completion of compulsory schooling. Full-time attendance at school or participation in approved vocational orientation or training programmes should be required and effectively guaranteed up to an age at least equal to that specified for admission to employment. Depriving children of opportunities for education and training condemned them to remain unskilled and thus perpetuated the poverty of a society. In recent years and to its credit, the Government of the Plurinational State of Bolivia had made education compulsory until the end of secondary school. This would in general require a child to go through 12 years of schooling, and, therefore, the age of completion of compulsory schooling would be at least 16 years. Allowing children to work as from the age of 10 would inevitably affect their compulsory schooling. Hence, the Code for Children and Young Persons was inconsistent with the national education law and was in clear violation of the Convention. The Worker members expressed their concern at the high number of children employed in the informal economy. While recognizing the results of measures taken by the Government to reduce the share of the informal economy, there were still too many children employed without protection in the informal economy. In the worst cases, they were engaged in forced begging, debt bondage, domestic services and commercial sex exploitation.

The Plurinational State of Bolivia’s capacity for effective labour inspection remained weak despite the significant number of children employed in hazardous employment. There were only 90 labour inspectors in the entire country, according to the Government’s report. In its report under the Worst Forms of Child Labour Convention, 1999 (No. 182), the Government indicated that there were only six labour inspectors specialized in the elimination of child labour. There was no indication that this number had been increased. Given the large number of children engaged in child labour, as well as the scale of the informal economy, the number of labour inspectors remained inadequate. Weak labour inspection not only reduced the possibility of the detection of violations related to child labour, but also hindered the appropriate punishment of perpetrators. The Worker members took note of the positive measures undertaken by the Government in order to eradicate child labour, such as the Inter-institutional Subcommittee for the Elimination of the Worst Forms of Child Labour, which aimed to mobilize efforts and create synergies to prevent child labour and to provide care for victims. Moreover, the Government’s Economic and Social Development Plan aimed to eradicate the causes of child labour by increasing public spending on child protection. In this area, there had indeed been progress, with public expenditure increasing from 3.5 per cent in 2005 to 7.8 per cent in 2015. These policy initiatives were commendable, but still fell short of the measures required for compliance with the Convention. The system introduced by the Code for Children and Young Persons had to be reformed without any delay. The Government should also immediately implement the ruling of the Constitutional Court by undertaking legislative reform in consultation with the social partners. They sincerely hoped that this discussion would be helpful in highlighting the urgency of these issues with the Government so that further progress could be made.

The Employer members expressed appreciation for the information provided and recalled that the discussion concerned a fundamental Convention and, as such, any lack of conformity with its provisions needed to be rectified as promptly as possible. They supported the designation by the Committee of Experts of the case as a double-footed one. Under Article 1 of the Convention, States undertook to pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons. The ILO defined child labour as any work that deprived children of their childhood, their potential and their dignity and that was harmful to their physical and mental development. As such, it was work that was harmful to a child’s physical, mental or moral well-being and interfered with schooling. According to the National Survey on Child Labour carried out in 2012 by the National Statistics Institute (INE), 491,000 children below the minimum age were engaged in work in the country, of whom 437,000 were engaged in hazardous work. Furthermore, 309,000 young persons aged from 14 to 17 were performing hazardous work. Those data showed the scale of the problem of child labour in the country. They also referred to the comments of the Committee of Experts on: (i) the lowering of the minimum age for admission to work under section 129 of the new Code for Children and Young Persons from 14 to 10 years for own-account workers and to 12 years for those working for others; (ii) the fact that the informal economy exceeded 70 per cent of the total economy, as it was the environment that was most conducive to child labour because it was beyond the scope of ordinary and general labour inspection; and (iii) the distinction made in the new Code for Children and Young Persons between fixing the minimum age at 10 for children working on their own account and at 12 for those working for others. In that respect, the Committee of Experts had requested the Government to take a range of measures, such as the drafting, in consultation with employers’ and workers’ organizations, of a new law to bring the national legislation into line with the Convention, and the provision of training and more human and material resources for the labour inspection services.

Moreover, the Constitutional Court, in its 2017 ruling, had found sections 129, 131, 133 and 138, among others, of the Code for Children and Young Persons to be unconstitutional as they were contrary to the Convention. International treaties formed part of constitutional law, therefore the above provisions of the Code for Children and Young Persons were not only contrary to the Convention, but also the Constitution of the country. The ruling of the Constitutional Court urged the Government to formulate public policies for the eradication of child labour, which should be designed and implemented in consultation with employers’ and workers’ organizations, as set out in the Convention. The Employer members concluded that, although the ruling of the Constitutional Court had overturned the provisions that breached the Convention, it had left a legislative loophole, as it was unclear which provisions were applicable. As a result, the Government still needed to amend the legislation explicitly so that it was in line with the Convention. To that end, they called for amendments to be made in consultation with the most representative employers’ and workers’ organizations, in accordance with the Convention.

The Worker member of the Plurinational State of Bolivia highlighted the high rate of exploitation in the past, resulting from the application of Supreme Decree No. 21060 of 29 August 1985, which had privatized strategic public enterprises. He noted that, pursuant to the Supreme Decree, a large number of factories and mining enterprises had closed and many workers had been dismissed. Currently, child labour principally existed in the private sector (the Potosí mining sector, and the agricultural and livestock sectors in Eastern Bolivia), while it had been reduced in the public sector. Furthermore, while underlining the importance of working in a coordinated manner with the Government with a view to eradicating child labour, he drew attention to the signing in 2016 of an agreement between the workers and the Government, under which the adoption of all draft legislation must be agreed upon with the Bolivian Workers’ Federation (COB). It was vital that this agreement be respected. He congratulated the Plurinational State of Bolivia, particularly the Constitutional Court, for the adoption of the ruling that repealed and annulled, inter alia, sections 129 and 138.I of the Code for Children and Young Persons.

The Employer member of the Plurinational State of Bolivia said that there were two aspects to non-compliance with the Convention, one of form and the other of substance. Regarding the problem of form, the ruling of the Constitutional Court, based on the provisions of the Convention, had ensured conformity with the Convention by maintaining the minimum age for admission to employment. He drew attention to the fact that the Government had not taken such measures when formulating the provision or when the international community had expressed criticism. Such conduct called into question the Government’s willingness to implement and comply with the international Conventions, as it implied that it only observed them when they were in keeping with its ideology, jeopardizing even sensitive issues, such as childhood development. With regard to the basic problem, the absence of effective policies against child labour in the informal economy was also a matter of concern. This sector represented over 70 per cent of the economy, and was a space which concealed forms of work that were not decent and impeded proper access to decent working conditions from the first years of work. The Code for Children and Young Persons was nothing more than a vehicle for the implementation of the public policies adopted by the Government. The initial provision allowing work by children under the age limit set out in the Convention therefore regrettably disregarded the spirit of international standards which protected children and preserved their right of access to opportunities to develop and grow. Lastly, he expressed concern that a provision had been adopted which clearly did not correspond to the shortcomings and structural needs of children. In that context, the Government should commit to generating the institutional structures and conditions necessary to: (i) fill the legislative gap revealed by the ruling of the Constitutional Court; (ii) establish state schemes to eliminate child labour fully and effectively; and (iii) design mechanisms for the protection of children’s rights and allowing for the development and growth, in decent conditions, of the population of some 800,000 children.

The Government member of Bulgaria, speaking on behalf of the European Union (EU) and its Member States, as well as Albania, Bosnia and Herzegovina, Georgia, Montenegro, Norway, the former Yugoslav Republic of Macedonia and Ukraine, indicated that every girl and boy deserved a childhood and proper education, regardless of their ethnicity, gender, religion, and their place of residence. The elimination and prevention of child labour constituted an important priority for the EU. Respect for the rights of the child was embodied in the Treaty on the EU and the Charter of Fundamental Rights. Furthermore, core labour standards were explicitly mentioned in all recently negotiated trade agreements between the EU and partner countries. The EU and the Plurinational State of Bolivia had very close bilateral cooperation. The Plurinational State of Bolivia was the largest recipient of bilateral EU development assistance in Latin America. It also benefited from the Generalised Scheme of Preferences (GSP+), under which, in return for preferential tariffs, it had committed to ratify and effectively implement fundamental ILO Conventions and other international instruments. This case had already been discussed by this Committee in 2015, following the adoption of the Code for Children and Young Persons that allowed children to work for an employer from 12 years of age, and in self-employment from 10 years of age. The Committee of Experts had concluded that these new provisions were not in conformity with the Convention. It had stressed that self-employed children should be guaranteed at least the same legislative protection as children in an employment relationship, particularly as many of these children were working in the informal economy under hazardous conditions. The Government had consequently been urged to: repeal these provisions; immediately prepare a new law in consultation with the social partners; and provide labour inspectors with greater human and technical resources. The Government had not taken any measures in this respect, despite the fact that child labour was a persistent phenomenon in the country, especially in rural areas and in the agriculture and mining sectors. She recognized the progress made by the Government in eradicating poverty and improving access to education, health, food and housing, and in effectively implementing human rights commitments. The Constitution, together with the Patriotic Agenda 2025 and the National Plan for Human Rights 2014–18, would provide a solid basis to better promote and protect human rights. The Code for Children and Young Persons also set out a wide range of measures for the protection of children, but the provisions allowing exceptions to the minimum age for admission to employment or work were of great concern. She referred to the decision of the Constitutional Court that declared these provisions unconstitutional, and looked forward to its swift implementation. The Government should be urged to prepare new legislation in consultation with the social partners increasing the minimum age for admission to employment or work. The Government could avail itself of the ILO’s technical assistance for this purpose. The Government should also be encouraged to reinforce the labour inspection services and to continue its efforts to invest in social services in order to effectively detect child labour and protect children in both the formal and informal sectors. The EU would continue to cooperate with the Plurinational State of Bolivia to achieve the sustainable elimination of all forms of child labour.

The Government member of Paraguay, speaking on behalf of the group of Latin American and Caribbean countries (GRULAC), welcomed the information provided by the Government representative with regard to the application of the Convention. The 2030 Agenda for Sustainable Development, and in particular Goal 8.7 on eradicating child labour in all its forms by 2025, represented a unique opportunity to speed up the elimination of inequality and poverty. The continued existence of child labour perpetuated inequality and the exclusion of large sectors of the population, jeopardized sustained growth in the region and threatened the productivity of future adults by restricting their opportunities to obtain decent work. As a result, the region had promoted a series of initiatives with the aim of reducing child labour faster. She expressed satisfaction at the steps taken by the Government and at reports that, through the binding ruling of the Constitutional Court, the provisions on which the Committee of Experts had commented had been rendered void and overturned. Observing that the legislation had been brought into line with the Convention, GRULAC considered that the Conference Committee should express satisfaction at the case. It should also highlight the progress that the Government had made in reducing poverty and inequality and tackling the structural causes of child labour, and it should encourage the Government to continue its efforts to eradicate child labour.

The Worker member of Spain deplored the adoption of the new Code for Children and Young Persons which, by amending former section 129 and reducing the minimum working age for children, was manifestly incompatible with the Convention. The existence of child labour was not acceptable under any circumstances and was a feature of societies where the inequality gap was growing. The consequences when children had to work were irreversible. She recalled the commitment made in the Buenos Aires Declaration on Child Labour, Forced Labour and Youth Employment of 16 November 2017, in which governments, the social partners and civil society were urged to be decisive in demanding the elimination of child labour. Lastly, in view of the information provided by the Government relating to the ruling of the Constitutional Court to suspend that section of the Code for Children and Young Persons, she concluded that it was necessary to enact a new law in line with the provisions of the Convention which established clear age criteria for admission to employment and had the goal of eliminating child labour.

The Government member of the Bolivarian Republic of Venezuela supported the statement made by GRULAC and welcomed the progress achieved by the Government, in particular with regard to the Economic and Social Development Plan and the ruling issued by the Constitutional Court, which had declared unconstitutional the provision of the Code for Children and Young Persons criticized by the Committee of Experts. In accordance with the ruling, the legislation of the Plurinational State of Bolivia was in line with the Convention. Based on the explanations provided by the Government representative, there was no doubt that the Government would pursue its protection policies in order to definitively eradicate child labour. He therefore considered that, in its conclusions, the Committee should note with satisfaction the progress made in the case.

The Worker member of Uruguay, while expressing appreciation for the social inclusion of and respect for different ethnic minorities demonstrated in the political process carried out in the Plurinational State of Bolivia, said that the adoption of a law that was in violation of a fundamental Convention showed inconsistencies. As a result of the exercise of full democracy, the law had been repealed. Nevertheless, social divisions continued to exist in the country which had resulted in many years of exclusion. It was necessary to address the causes of the situation and eradicate child labour in accordance with the provisions of the Convention. He was confident that the Government would establish the necessary mechanisms to hold consultations with the social partners for the purpose of developing legislation that allowed children to receive an education in order to ensure the development of the country.

The Government member of Ecuador endorsed the statement made on behalf of GRULAC and thanked the Government representative for the information provided. Ecuador considered the elimination of both inequality and poverty to be a priority and therefore attached great importance to combating child labour. The care, protection and development of children were some of the drivers of the comprehensive development to which nations so greatly aspired. Welcoming the progress and action taken to guarantee the best interests of the child, she encouraged the Government of the Plurinational State of Bolivia to continue working hard to address the structural causes of child labour.

The Government member of Egypt indicated that the application of the Convention was a matter of significant importance as it was one of the fundamental Conventions. He noted the Government’s efforts for the effective eradication of child labour, including: amending the legislation to bring it into conformity with the Convention; the ruling by the Constitutional Court on certain provisions of the Code for Children and Young Persons; the economic measures for the eradication of poverty, which was one of the main causes of child labour; improved health care for children; and measures to improve the schooling of children. The Committee of Experts should take account of these positive measures. Technical assistance should be provided to the Government to improve the implementation of the Convention.

The Government member of the United States welcomed the ruling by the Constitutional Court that declared unconstitutional certain provisions of the Code for Children and Young Persons that allowed the employment of children under the age of 14 and contrary to the country’s international legal obligations. He encouraged the Government to take all appropriate action to implement laws and practice in line with the Convention, availing itself of the ILO technical assistance.

The Government member of Algeria noted with satisfaction the efforts made by the Government of the Plurinational State of Bolivia to enhance the implementation of policies to reduce the structural causes of child labour, such as poverty, which had decreased from 38.6 to 16.8 per cent, the school drop-out rate, which had been reduced from 4 to 2 per cent between 2006 and 2014, and the generalization of education, with coverage reaching 80 per cent. The commitment of the Government and the action taken to adapt the national legislation and to implement economic and social policies aimed at combating child labour should be supported. He considered that the progress made in that area should not be ignored and that the efforts made and the results achieved should be taken into account.

The Employer member of Chile regretted that the Government had not brought national law and practice into conformity with the Convention, despite a specific request from the Committee to that effect in 2015. Although the Government indicated that the exceptions to the minimum age of 14 years provided for in the Code for Children and Young Persons only applied on the condition that basic rights, such as the right to education, were not prejudiced, it was clear that the exceptions undermined that right, particularly considering that the period of compulsory schooling was 12 years, or at least until the age of 16 years. Furthermore, it should be noted that the Code had been adopted without first consulting workers’ and employers’ organizations, which was another regrettable error. Since the ruling of the Constitutional Court, there had been a regulatory gap and it was still necessary for the Government, in consultation with employers’ and workers’ organizations, to bring its legislation into conformity with the Convention without delay.

The Government member of the Dominican Republic acknowledged the good intentions of the Plurinational State of Bolivia and the action it had taken, which bore witness to the State’s duty to safeguard the best interests of children and young persons. The information provided by the Government regarding the Constitutional Court ruling, which was binding, demonstrated its commitment. The ruling was an appropriate response to the recommendations of the Committee on the Application of Standards.

The Government member of Canada referred to the IV Global Conference on the Sustained Eradication of Child Labour of 2017 where the parties had committed to work towards the eradication of child labour. Already in 2015, the Government had been requested to take immediate measures to amend the provisions of the Code for Children and Young Persons concerning the minimum age for admission to employment or work for self-employment and for work in an employment relationship in order to bring them into line with the Convention. Welcoming the information provided by the Government concerning the judicial ruling declaring these provisions unconstitutional, she urged the Government to amend the Code without delay to ensure that the appropriate minimum age was clear for all constituents. The Government was also urged to strengthen its labour inspection capacity and its efforts to apply the law, and to prevent the inappropriate use of child labour, particularly in the informal economy.

The Government member of Switzerland expressed concern at the fact that the Code for Children and Young Persons was still not in conformity with this fundamental Convention. It was regrettable that some of its provisions, which were in force provisionally, allowed for the minimum age for admission to work to be reduced to below 14 years. That was not compatible with the conditions required for adequate schooling and did not allow young persons to attain full mental and physical development. Switzerland had already expressed concern in the Committee in 2016 at the provisions of section 129 of the Code, which allowed children to work from the age of 10 years. It was therefore appropriate to call on the Government once again to bring its legislation into conformity with the Convention, promote high-quality schooling and education, continue combating poverty and eliminate child labour and the exploitation of children.

The Government member of Nicaragua supported the statement made on behalf of GRULAC and welcomed the information provided by the Government representative. The eradication of poverty and inequality was fundamental, and it was therefore to be welcomed that, in the context of national economic and social development policies, the Plurinational State of Bolivia had established general policies for the comprehensive development of the country in line with the “living well” vision. It should also be emphasized that the Government’s efforts to achieve progress towards the goals included in its pillars the eradication of extreme poverty, socialization, the universalization of services, health and education, productive and food sovereignty with a view to eradicating child labour by 2025. He also welcomed the ruling issued by the Constitutional Court, which rendered void the provisions criticized by the Committee of Experts, and the introduction of socio-economic policies which had reduced several of the structural causes of child labour, such as extreme poverty. He encouraged the Government to continue implementing policies for the control, follow-up and application of measures to contribute to the eradication of child labour by 2025.

The Government member of Cuba welcomed the information provided by the Government representative and the progress made in reducing inequality and poverty, which had fallen from 38.6 per cent to 16.8 per cent in recent years. It was also important to recognize the changes made regarding structural causes, which had created better conditions for children and their families. The Government’s focus on education had been instrumental in making structural changes, and as a result, the number of children attending school had doubled. The social progress that had been made, as reflected by the reduction of poverty, the inclusion of vulnerable groups in the life of the country and the emphasis on children, young persons and women, were undeniable. Concerning labour issues in general, the Plurinational State of Bolivia had said that it was continuing to work towards the eradication of the worst forms of child labour, and the exceptional measures adopted previously had been set aside. She expressed confidence that the necessary efforts would be made to eliminate the causes of child labour, through a multisectoral and protective approach, taking as a premise the “best interests of the child” and adapting the regulatory framework.

The Government representative emphasized that in its ruling the Constitutional Court had removed the points raised in the observation of the Committee of Experts, for which reason it was no longer necessary to amend the legislation with a view to bringing it into conformity with the Convention. The Code for Children and Young Persons now set a minimum age for admission to work of 14 years, in accordance with Article 2(4) of the Convention and the General Labour Act of the Plurinational State of Bolivia. Further legislative measures on the minimum age for admission to employment were not therefore required. On the other hand, the public policies adopted by the Government were solid and progress had been made in reducing the structural causes of poverty and in the abolition of child labour. In that regard, in 2008 over 700,000 children had been in a situation of child labour and hazardous work, while the number had fallen to 437,000 in 2012. According to the latest data from the Survey of Children and Young Persons of the INE, there were currently 323,000 children in that situation, meaning that the number of children engaged in child labour had been reduced by over 50 per cent in recent years. All of that demonstrated the will of the Government not only to comply with the provisions of the Convention, but also to transform the situation of poverty experienced by the children of the country. With reference to the alleged absence of public policies for the eradication of child labour in the informal economy, as a result of the policies implemented by the Government, he emphasized that the number of salaried workers had increased between 2005 and 2017 and was now 1,500,000. The number of workers covered by social security had also risen from 2,600,000 in 2005 to 4,200,000 in 2017. The numbers of the population entitled to retirement benefits had also increased from 660,000 in 2006 to 1,600,000 at present. It was clear that the economic policies that were being implemented were creating a structural basis with a view to offering the population the right to dignity, which presupposed not only access to work, but also the right to social security and pensions.

Finally, he reaffirmed the commitment of the Plurinational State of Bolivia to making the necessary efforts for the eradication of child labour. To that effect, the Patriotic Agenda 2025 included among its objectives the eradication of child labour by the year 2025. The progress made was significant, but not sufficient, for which reason it was necessary to continue the transformations that were being made for the benefit of children and young persons. On that basis, the Committee should recognize the efforts that were being made.

The Employer members emphasized that, despite the ruling of the Constitutional Court, all the issues had not been resolved, and that there was still a lack of conformity with international rules, and especially with the Convention. For example, reference had been made to the register of child workers, which was provided for in the Convention as an instrument to monitor child labour. Similarly, despite the amendments made as a result of the ruling of the Constitutional Court, it was still not clear how sections 132 and 133 of the Act would be applied. The lack of a process of tripartite consultations with the most representative organizations of employers and workers was also a problem. The Plurinational State of Bolivia still needed to design and adopt policies for the abolition of child labour, in consultation with the social partners in the country, and to bring its legislation more fully into line with the Convention, as it had been requested to do since 2015. State intervention was crucial in two important areas. Firstly, for the strengthening of labour inspection, both regarding material and human resources, and in terms of the training of inspectors on child labour in general and child labour in the informal economy, where child labour was prevalent and most violations occurred. Secondly, the Government was urged to accept ILO technical assistance, which had been proposed in the past, so that the country could overcome the legislative issues and develop a plan for the eradication of child labour, in continuous consultation with the tripartite partners. In conclusion, considering the gravity of the case under discussion, the Employer members called for the case to be included in a special paragraph of the Committee’s report.

The Worker members recalled that, on the two occasions that the Committee had discussed the application of the Convention, the case had been double footnoted. On both occasions, it had been clear that the decision to lower the age for admission to employment to ten years was not in line with the Convention. While the Government had taken some positive measures to eradicate child labour and provide protection for children, legislative reform was imperative. They noted the information provided by the Government in its concluding remarks that section 129 of the Code for Children and Young Persons had been revoked by the Constitutional Court and then modified by the Government. They welcomed this decision as a positive step, and invited the Government to communicate this information to the Office and to the Committee of Experts. They called on the Government to progressively increase the minimum age for admission to employment in collaboration with the social partners. Depriving children of opportunities for education and training would keep them unskilled, and thus perpetuate the poverty of a society. If the minimum age for admission to work or employment was lower than the school-leaving age, children could be encouraged to leave school, as it would mean legally authorizing children of the age of compulsory schooling to work. The Government should therefore ensure that the minimum age for employment was set higher than the age of completion of compulsory schooling. As the limited number of labour inspectors might make it difficult for them to cover the informal economy and agriculture, where most child labour was to be found, the Worker members called on the Government to strengthen the capacity and expand the reach of the labour inspectorate. They suggested that the Government could benefit from ILO technical assistance.

Conclusions

The Committee took note of the information provided by the Government representative of the Plurinational State of Bolivia on the issues raised by the Committee of Experts and the discussion that followed regarding the articles of the Code on Children and Adolescents that are not in line with the provisions of ILO Convention No. 138.

It is also noted that the Constitutional Decision 0025/2017 of 21 July 2017 declared the unconstitutionality of several of the provisions of the Code for Children and Adolescents (Act No. 548 of 17 July 2014), taking, as a reference and legal basis for this articles 1, 2 and 7 of ILO Convention No. 138. As a result of that decision, the following sections of the Code have been declared unconstitutional: 129.II; 130.III; 131.I, III, IV; 133.III, IV; 138.I.

The Government stated that following the decision of the Constitutional Court, no legislative amendments were needed, given the repealing effects of the constitutional decision on the aforementioned provisions.

Taking into account the Government’s submissions and the discussion that followed, the Committee urged the Government to:

- adapt national legislation, in consultation with the most representative employers’ and workers’ organizations, following the repeal of the provisions of the Code for Children and Adolescents by the Constitutional Court of the Plurinational State of Bolivia, in line with Convention No. 138 and inform the Committee of Experts on these measures;

- make available to labour inspection increased human, material and technical resources and training, especially in the informal sector, to provide a more effective implementation of Convention No. 138 in law and practice;

- avail itself of technical assistance from the ILO, to review the National Plan for the Eradication of Child Labour in consultation with the most representative organizations of employers and workers; and

- submit to the Committee of Experts the final draft of provisions of the Code on Children and Adolescents before 1 September 2018; and report in detail on the progress made in the application of Convention No. 138 in law and practice to the next meeting of the Committee of Experts in 2018.

The Government representative clarified that the Constitutional Court’s declaration of unconstitutionality referred to section 129.II of the Code. However, in the case of sections 130.III; 131.I, III and IV; 133.III and IV; and 138.I, it only applied with respect to the provisions establishing the exception to the minimum age of 10 years for light work. It was important to take that situation into account, as the first bullet point seemed to suggest, erroneously, that all of the above provisions had been derogated.