Demande directe (CEACR) - adoptée 2000, publiée 89ème session CIT (2001)

Convention (n° 138) sur l'âge minimum, 1973 - Espagne (Ratification: 1977)

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.