CMNT_TITLE

Minimum Age Convention, 1973 (No. 138) - Brazil (RATIFICATION: 2001)

Other comments on C138

Observation

Direct Request

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The Committee notes the joint observations of the Single Confederation of Workers (CUT), the National Forum for the Prevention and Eradication of Child Labour (FNPETI) and the National Union of Labour Inspectors (SINAIT) received on 23 October 2020, and the Government’s replies to these observations. It also notes the observations of the National Association of Labour Justice Magistrates (ANAMATRA) received on 6 December 2021.

Article 1 of the Convention. National policy towards the elimination of child labour and application of the Convention in practice.With regard to its previous comments the Committee notes that the Government indicates in its report that the Third National Plan for the Prevention and Elimination of Child Labour and the Protection of Working Adolescents was finalized and is currently in force. The Plan includes among its objectives: (i) prioritizing prevention and elimination of child labour in political and social agendas; (ii) ensuring quality and free education for all children; (iii) protecting the health of children and adolescents against exposure to work-related risks; and (iv) fostering knowledge about the reality of child labour in Brazil. The Committee also notes that according to the National Continuous Household Survey (PNAD Contínua) (2016–2019) conducted by the Brazilian Institute of Geography and Statistics (IBGE), a total of 1,768,000 children and adolescents were engaged in child labour in 2019. The survey also shows that the number of children and adolescents (5 to 17 years of age) engaged in child labour fell from 5.3 per cent (2,100,000) in 2016 to 4.6 per cent (approximately 1,800,000) in 2019. The Committee further notes that the ANAMATRA highlights that, according to the data of the IBGE, of the total number of children engaged in child labour in 2019, 66.1 per cent were Afro-Brazilian children.

The Committee notes that in response to the observations of the CUT, FNPETI and SINAIT related to the abolition of the National Council for the Elimination of Child Labour (CONAETI), the Government indicates that the CONAETI was re-established by the Decree No. 10.574 of 14 December 2020, as one of the thematic committees of the National Labour Council tasked with monitoring, evaluating and proposing policies on child labour. The composition of the CONAETI is tripartite, with the participation of six representatives of the Federal Government, six representatives of employers and six representatives of workers. The Committee also notes that the CUT, FNPETI and SINAIT observe that no measures have been taken to ensure the continuity of the Programme of Action for the Elimination of Child Labour (PETI). In this regard, the Government indicates that the PETI was redesigned with the aim of enhancing existing social welfare services and to align actions with other public policies to create a multisectoral child labour eradication agenda; and that its redesign did not affect the provision of cash transfers or social work carried out with families, but strengthened management and collaboration in five key areas: information and mobilization, identification, protection, advocacy and empowerment and monitoring. The Government adds that even though the COVID-19 pandemic has made it extremely difficult to keep social welfare services and programmes operational and the social protection network active, 8,843 activities have been carried out throughout Brazil at the state and municipal level under all five PETI areas of focus. The Committee encourages the Government to continue taking measures towards the elimination of child labour, including within the framework of the PETI, and requests it to continue providing information on the results achieved. In this respect, the Committee also requests the Government to provide information on the measures taken or envisaged to reduce child labour among Afro-Brazilian children. Finally, it requests the Government to provide information on the activities of the CONAETI, particularly in relation to the monitoring and evaluation of child labour policies.

Article 2(1). Scope of application. Children working in family enterprises. Following its previous comments, the Committee takes due note of the Government’s indication that section 402 of the Consolidated Labour Act, which excludes from its scope work undertaken by children and young persons in family enterprises, is not an exception authorizing child labour and that it in no way undermines the application of article 7 (XXXIII) of the Federal Constitution, which sets the minimum age at 16 years and prohibits hazardous work for young persons under 18 years. Furthermore, the Government refers to section 67 of the Statute of Children and Adolescent, according to which family workers shall not engage in night work, hazardous work, and work carried out during hours that prevent them from attending school. The Committee notes that, according to the statistical information provided by the Government, 30.9 per cent of children between 5 and 17 years engaged in child labour, work as helpers in family enterprises. The Committee requests the Government to take the necessary measures to ensure that, in practice, children working in family enterprises do not engage in child labour, including in hazardous work, and to provide information in this regard.

Articles 2(1) and 7(1) and (3). Minimum age for admission to employment or work, minimum age for admission to light work and regulation of light work activities. The Committee notes that the ANAMATRA refers to a legislative proposal to amend item XXXIII of Article 7 of the Federal Constitution (PC 18/2011), which aims at reducing the minimum age for admission to employment or work, by authorizing children above 14 years to undertake part-time work for up to 25 hours per week. The Committee notes that the rapporteur of the Parliament Commission of Constitution, Justice and Citizenship, in his report dated 18 August 2021, declared the admissibility of PC 18/2021 highlighting that the Convention permits children who have reached the age of 13 years to undertake light work that is not likely to affect their safety, health and education.

In these circumstances, the Committee emphasizes that the overall objective of the Convention is 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.Moreover, pursuant to Articles 1 and 2, paragraph 1 ofthe Convention, read together, once a minimum age for admission to employment has been specified upon ratification (16 years in the case of Brazil), the Convention provides for the possibility to raise it progressively, but does not allow the lowering of the minimum age once specified. While Article 7(1) of the Convention provides for an exception to the general minimum age by allowing children who have reached 13 years of age to carry out light work, such work cannot prejudice their attendance at school, their participation in vocational orientation or training programmes and their capacity to benefit from the instruction received. Pursuant to Article 7(3) of the Convention, the competent authority shall determine the light work activities and prescribe the number of hours during which and the conditions in which such employment or work may be undertaken.

The Committee observes that the proposed constitutional amendment does not refer to specific light work activities permitted for children from the age of 14 years. Rather, it is broadly drafted so as to permit children to undertake any kind of work or occupation in any sector or in any occupation for up to 25 hours a week. Moreover, in giving effect to Article 7(3) of the Convention, special attention should be given to several key indicators, including the strict limitation of the hours spent at work in a day and in a week, the prohibition of overtime, the granting of a minimum consecutive period of 12 hours’ night rest, and the maintenance of satisfactory standards of safety and health and appropriate instruction and supervision (2012 General Survey on the fundamental Conventions, paragraph 396). The Committee is of the view that authorizing children from the age of 14 to carry out part-time work under such conditions may have a negative impact on children’s school attendance and performance as the time needed for homework related to their education, as well as for rest and leisure could be considerably reduced and therefore may not be considered an authorized exception to the minimum age under the Convention. Therefore, the Committee expresses the firm hope that any legislative proposal to modify the minimum age for admission to employment or to regulate light work activities be considered in light of the above-mentioned provisions of the Convention.

Labour inspection. The Committee notes that the Government enumerates different measures taken by the labour inspectorate to combat child labour in both the formal and informal economy, which include: (i) training for labour inspectors on addressing the various types of child labour; (ii) development of appropriate intervention instruments, including in the informal economy; (iii) inspection operations in child labour hotspots, including in rural areas; and (iv) actions planned in coordination with social partners with a view to the sustainable elimination of child labour hotspots. The Government adds that, as a result of the measures taken, the labour inspectorate found 535 children and adolescents engaged in child labour in the first semester of 2021. A total of 185 children and adolescents were found in child labour in the informal economy during inspections conducted in Maranhão, Espírito Santo, Roraima, Paraíba and Bahia during the same period. The Committee observes, however, that these numbers are still low compared to the overall number of children engaged in child labour in the country (according to the National Continuous Household Survey there were 1,768,000 children). Therefore, while noting the measures taken by the Government, the Committee strongly requests the Government to take the necessary additional measures to strengthen the capacities of the labour inspectorate to effectively detect situations of child labour, particularly in the informal economy, and to provide information about the impact of these additional measures. The Committee also requests the Government to continue providing information on the number of inspections related to child labour that have been carried out, the number and nature of violations detected, the sectors in which they were found, and the penalties applied.