Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information sent in the Government’s report and the information supplied in answer to its previous comments. It notes the observation from the Trade Union Confederation of Workers’ Commissions (CC.OO.) concerning the lack of consistency between the national legislation and the provisions of the Convention.

1.  Article 2 of the Convention.  For a number of years the Committee has been drawing the Government’s attention to the absence of provisions establishing that minors must undergo a medical examination for fitness for employment before being hired. In its previous comments the Committee asked the Government once again to examine the problems arising from this inconsistency between the legislation and practice and the Convention and to take the necessary steps to bring its legislation and practice into line with the provisions of the Convention.

In its reply the Government refers to articles 42.2 and 43 of the Constitution, in which the rights of all workers regarding occupational safety and health are established in a general manner. It also refers to section 4(2)(d) of the Act issuing the Workers’ Statute, as amended, which confers on workers the right to have their physical integrity respected and to an adequate health and safety policy. The Government further indicates that Act No. 31/1995 on risk prevention at work incorporates into domestic law European Directive 94/33 of 22 June 1994 concerning the protection of young people at work. In this connection the Committee notes that section 27 of Act No. 31/1995 on the prevention of risks at work provides, in its first paragraph, that, before assigning minors under 18 years of age to a job, employers must carry out an appraisal of the posts to which they are to be assigned, focusing particularly on the specific risks to the safety, health and development of young people which may arise from their lack of experience, their lack of knowledge or their lack of maturity. Furthermore, section 22(1) of the above Act provides that the medical examination may be carried out only at the request of the worker or with the worker’s consent, except when such an examination is required in order to assess the effects of working conditions on the health of workers or to establish whether the worker’s state of health may constitute a danger for him or her, for the other workers or for other persons having a connection with the enterprise. The Committee notes in this connection the Government’s statement that Act No. 31/1995 on the prevention of risks at work embodies the new preventive concept of occupational safety and health, namely that, on the basis of an evaluation of the risks that the work involves for the young people who are to perform it, the employer must take measures to protect their safety and health, taking account of the specific risks arising out of their lack of experience, their unawareness of hazards or their incomplete development. The Committee notes first that the measures to be taken depend on the nature of the dangers inherent in the work. Secondly, it recalls that the medical examination prior to employment specified in the Convention concerns the persons expressly referred to - namely children and young people under 18 years of age - the aim being to certify their fitness for a specific job, whereas the risk evaluation provided for in the abovementioned Act concerns the type of work to be performed and is therefore limited to the risks inherent in the work. Finally, the Committee notes section 196(1) of Legislative Decree No. 1/1999 to amend the General Social Security Act, which provides for medical examinations prior to hiring and periodic examinations for jobs involving a risk for the worker of contracting an occupational illness. However, section 6(2) of the Act issuing the Workers’ Statute prohibits the employment of minors in jobs falling within the scope of section 196(1) of the abovementioned Legislative Decree.

The Committee observes that no provision expressly requires a thorough medical examination prior to employment, which is necessary for full effect to be given to Article 2 of the Convention. Recalling that it is of vital importance that all minors should undergo a medical examination for admission to employment, the Committee again expresses the hope that the necessary measures will be taken as soon as possible to bring the law and practice into conformity with the requirements of this Article of the Convention.

2.  Article 2(1).  The Committee notes that section 3(4) of Act No. 31/1995 on risk prevention at work excludes work in family enterprises from the scope of the Act. It notes that the Government confines itself to stating that the contractual relationship of minors engaged in activities in family enterprises is governed by Legislative Decree No. 1424/1985, section 13 of which establishes the obligation to respect safety and health. The Committee recalls that Article 2(1) of the Convention requires a medical examination for admission to employment for all children and young people regardless of the type of work contract. It hopes that the Government will take the necessary measures as soon as possible to ensure that the obligation to carry out a medical examination for fitness for employment is extended to minors working in industrial family enterprises.

3.  The Committee notes the observations made by the CC.OO. Noting that section 6(1) of the Workers’ Statute, as amended by Legislative Decree No. 1/1995 of 24 March, establishes that the minimum age for admission to employment is 16 years, it observes that there is no provision in Spain’s legislation for any type of medical examination for the admission to employment of young people between 16 and 18 years of age. Furthermore, the legislation draws no distinction between work in industrial enterprises and occupations in other sectors of activity. According to the CC.OO., in these respects the legislation is in obvious breach of the Convention, particularly its core provisions, namely Article 2(1) regarding the medical examination for admission to employment, and Article 3(1) of the Convention, regarding the medical supervision of young persons until they have attained the age of 18 years. The CC.OO. asks the Government to take the necessary measures to bring national law and practice into conformity with the provisions of the Convention. The Committee observes that the CC.OO. has been making similar comments since 1991 and again requests the Government to provide information on all the points raised in the abovementioned comments.

[The Government is asked to report in detail in 2002.]