Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s report.

Article 2 of the Convention. Thorough medical examination for fitness for employment. In the comments that it has been making for several years, the Committee has pointed out that the national legislation contains no provision establishing that minors under 18 years of age must undergo a thorough medical examination for fitness for employment before being employed. The Government indicated that Article 2 of the Convention is applied, inter alia, by the provisions of section 37(3) of Royal Decree No. 39 of 17 January 1997 on occupational health services and section 22 of Act No. 31/1995 on the prevention of occupational risks. The Committee observed that it could not be inferred from the abovementioned provisions that a thorough medical examination was a requirement for a worker to be employed, and asked the Government to take steps to bring its legislation into conformity with the Convention.

In its report, the Government states that, section 6(1) of Legislative Decree No. 1/1995 of 24 March 1995, approving the revised text of the Act on the statute of workers, provides that it is forbidden to admit minors under 16 years to employment. It also indicates that section 6(2) prohibits workers under 18 years of age from performing night work and any activity deemed insalubrious or hazardous for their health. The Government indicates in this connection that the Decree of 26 July 1957, which regulates prohibited work, provides that girls and boys under 18 years of age may not be employed in the types of hazardous work listed in the Decree. It also refers to section 27(1)(1) of Act No. 31/1995 on the prevention of occupational risks under which, before assigning minors under 18 years of age to a job, the employer must conduct an appraisal of the posts to which workers are to be assigned, and the appraisal must cover in particular special risks for their safety, health and development that may arise from a lack of experience, knowledge or maturity. The Government likewise refers to section 27(1)(2) of Act No. 31/1995 which provides that, on the basis of an assessment of the risks that the job involves for the young person assigned to it, the employer must take steps to protect the latter’s safety and health, taking into account the specific risks that arise from lack of experience and from immaturity in terms of awareness of the risks or the fact that the young person is still developing. According to the Government, since under Spanish law it is forbidden for young persons under 16 years of age to work (section 6 of Legislative Decree No. 1/1995 of 24 March 1995), since the list of types of hazardous work prohibited for minors under 18 years of age has been drawn up (Decree of 26 July 1957) and since all workers are entitled to have their health protected (section 22 of Act No. 31/1995), no one under 18 years of age may carry out hazardous work. It follows that a specific medical examination for fitness for employment for minors under 18 years of age cannot be established for work which they are prohibited by law from carrying out.

While taking due note of the Government’s information, the Committee observes that Spain’s national legislation allows minors over 16 years of age to be employed under certain conditions (section 3 of the Decree of 26 July 1957 and section 2 of the Ordinance of 28 January 1958). Noting the statistics of breaches of the safety and health protection for minors of 16–18 years in the industries reported by the inspectorate for labour and social security for the years 2001–05, the Committee observes that the possibility does exist for minors to work in enterprises covered by the Convention (Article 1). It accordingly asks the Government to indicate how the appraisal of posts and their inherent risks established in section 27(1)(1) and (2) of Act No. 31/1995 makes it possible to ensure that minors of 16–18 years shall be recognized as fit for work before entering employment, taking into account the fact that such fitness for work shall in any event be recognized by a thorough medical examination. Noting that the abovementioned statistics do not specify the types of breaches committed in the various industries, the Committee requests the Government to continue to provide information on the practical effect given to the Convention including, for example, data on the number and nature of the offences reported and the penalties applied.