Solicitud directa (CEACR) - Adopción: 2012, Publicación: 102ª reunión CIT (2013)

Convenio sobre el examen médico de los menores (industria), 1946 (núm. 77) - España (Ratificación : 1971)

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The Committee takes note of the Government’s report. It also notes the comments by the Trade Union Confederation of Workers’ Commissions (CCOO) of 21 August 2012.

Article 2 of the Convention. Thorough medical examination for fitness for employment. In its previous comments, 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 Committee also observed that while Spain’s national legislation prohibits workers under 18 years of age from being employed in hazardous work, it does allow minors over 16 years of age to be employed under certain conditions in enterprises covered by Article 1 of the Convention. The Committee asked the Government to indicate how the appraisal of posts and their inherent risks established made 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 be recognized by a thorough medical examination.

The Committee notes the comments of the CCOO which point out that national legislation obliges the employer, before a minor takes up employment, to carry out a complete and detailed examination of the position in question taking into account all risks, in particular those relating to safety and health, and those arising from their level of development, immaturity and lack of experience to evaluate existing and potential risks.

In its report, the Government reiterates 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 of age 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. In addition, 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. The Government indicates that the prohibitions in this regard for the majority relate to work carried out in industrial undertakings as defined in Article 1(2) of the Convention, in particular, mines, quarries and other works for the extraction of minerals, undertakings engaged in building and civil engineering work and undertakings engaged in the transport of passengers or goods.

The Government furthermore states that for all other activities which may be carried out by minors under 18 years in industrial undertakings, because they are not considered inadequate, insalubrious or hazardous, the employer must, by virtue of section 27 of Act No. 31/1995 on the prevention of occupational risks, before assigning a minor under 18 years of age to a job, conduct an appraisal of the post in question, 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. According to the same Act, on the basis of an assessment of the risks that the job involves for the young person assigned to it, the employer must take measures 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. These measures include section 22 of Act No. 31/1995 which requires periodic monitoring of workers’ health in light of the risks inherent in the job. Section 25 of the same Act prohibits the employment of workers who, due to their personal characteristics, can cause danger to themselves or others.

The Committee takes note of the Government’s statement that although no specific provision in national law exists establishing that minors under 18 years of age must undergo a thorough medical examination for fitness for employment before being employed, Spain’s national legislation adopts a more comprehensive and rigorous approach in this regard. The Committee notes the Government’s explanations that national legislation perceives safety and health monitoring as a preventive measure to ensure the safety and health of workers, requiring that this surveillance be adequate to the risks to which the worker may be exposed. These surveillance measures may include medical examinations, but the effective compliance with national legislation is not limited to them. The Committee notes the Government’s indication that Spain’s national legislative tradition of a larger concept and more stringent requirements for the safety and health protection of minors are in line with the European Council Directive 94/33/CE of 22 June 1994 on the protection of young people at work.

The Committee also takes due note of the statistics provided by the Government on the basis of the reports from the labour and social security inspectorate for 2007–11 in the field of safety and health protection for minors specifying the breaches committed in the various industries, the number of the offences reported, the number of workers affected and the penalties applied. The Committee notes that while the number of visits increased between 2007 and 2011, the number of offences reported declined from 39 in 2007 to nine in 2010.