Demande directe (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

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

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.