Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

With reference to its previous comments, the Committee notes the Government’s indication to the effect that, further to a number of meetings during which a number of draft laws before National Congress were studied, the subcommittee on bringing the national legislation into conformity with Conventions Nos 138 and 182 will draw up a preliminary draft Act designed to amend Decree No. 4.134, which promulgated Convention No. 138. This preliminary draft will deal in particular with the issues of small enterprises and the family economy. The Committee expresses the firm hope that the preliminary Act which will be drawn up by the subcommittee will take account of the various issues raised below in order to give full effect to the present Convention and requests the Government to supply information on all progress made in this respect.

Article 2, paragraph 1, of the Convention. 1. Scope of application. The Committee previously noted that the Government had declared the minimum age for admission to employment or work as 16 years. It also noted that article 7, paragraph XXXIII, of the Federal Constitution and section 403 of the Consolidated Labour Act prohibit the labour of children under 16 years of age. However, the Committee noted that, under section 402 of the Consolidated Labour Act, children who have not yet reached the minimum age for admission to employment or work may work in workshops in which only the child’s family members are employed and which are managed by their father, mother or guardian, with the exception of night work (section 404) and hazardous work (section 405). The Government indicated that section 402 of the Consolidated Labour Act excludes from its scope work by children and young persons in family enterprises, i.e. in economic activities for the purpose of family subsistence and maintenance. In this type of work there is no employment relationship. Furthermore, according to the Government, even though the national legislation does not give a precise definition of work in a family enterprise, it is clear from article 7, paragraph XXXIII, of the Federal Constitution that the national legislation prohibits the employment of persons under 16 years of age, with the exception of apprentices aged 14 years. However, in view of the absence of an effective legal instrument, the direct intervention of labour inspectors to combat this form of child labour is hindered, especially as the administrative notes on the Consolidated Labour Act and the actual provisions of the latter, which may be used by inspectors in discharging their functions, only cover workers engaged in an employment relationship.

The Committee pointed out that it understands from this information that, according to the hierarchy of legal standards, article 7, paragraph XXXIII, of the Federal Constitution prevails over the other provisions of the labour legislation with regard to the minimum age for admission to employment or work and that, accordingly, no person under 16 years of age may work, with the exception of 14‑year-old apprentices. The Committee nevertheless observed that, since section 402 of the Consolidated Labour Act is still in force and labour inspectors cannot legally monitor child labour in family enterprises, children may work under the minimum age for admission to employment. However, children who engage in an economic activity without an employment contract must enjoy the protection provided for by the Convention. The Committee asked the Government to take the necessary steps to grant the protection provided for by the Convention to all children and to adopt measures enabling the labour inspection services to inspect children engaged in economic activity on their own account, such as in family enterprises.

In this regard, the Government indicates that the Ministry of Labour and Employment has modified the functions of the Special Mobile Inspection Group (GEFM) and extended labour inspectors’ scope of action to combating child labour. Child labour has become a mandatory part of rural and urban inspections. The aim of this reinforcement of labour inspection is to remove children and young persons from illegal work, in both the formal and informal economies, and to orientate them towards a social protection network in order to reintegrate them into society. This action covers the whole of the national territory. The Government also points out that an information system on locations where child labour occurs (SITI) has been set up. SITI contains detailed information on locations where child labour occurs, including the worst forms thereof, in both the formal and informal economies. The Committee duly notes this information and requests the Government to indicate the number of working children under 16 years of age without an employment relationship who have been withdrawn from their activities, such as those who work on their own account or in the informal economy, further to the intervention of the labour inspection services. Since a large number of children work in family enterprises, the Committee also requests the Government to indicate whether the reinforcement of the labour inspection services enables inspectors to carry out inspections in family enterprises and, if so, to indicate the number of children under 16 years of age who have been withdrawn from their activities.

2. Minimum age for admission to employment or work. Work performed in streets and public places. The Committee previously noted that section 405(2) of the Consolidated Labour Act states that work performed by a minor between 14 and 18 years of age in streets and other public places must be subject to prior authorization by a juvenile court, which is responsible for verifying that the occupation is essential for the subsistence of the minor or that of his or her parents, grandparents or siblings, and that it is not harmful to his or her moral development. The Committee noted that, under the terms of this provision, children aged 14 or over may be admitted to employment or work in streets or other public places even though the specified minimum age for admission to employment or work is 16 years. Noting once again the lack of information from the Government on this point, the Committee urges the Government to indicate the measures taken or envisaged to ensure that no minor under 16 years of age is admitted to employment or work in the streets or other public places.

Article 3, paragraphs 1 and 3. Minimum age for admission to hazardous types of work. In its previous comments the Committee noted that section 1 of Order No. 20 of 13 September 2001 on labour inspection [Order No. 20/2001] prohibits the employment of young persons under 18 years of age in the activities set out in Schedule 1. It noted, however, that section 1(1) of Order No. 20/2001 states that this prohibition may be lifted subject to a reasoned opinion from an approved occupational safety and health expert stating that there is no exposure to risks which might endanger the health and safety of the young person. The Committee observed that section 1(1) of Order No. 20/2001 is not in conformity with Article 3(3) of the Convention. In this regard, the Government stated that the National Council for the Elimination of Child Labour (CONAETI) was examining Order No. 20/2001.

The Committee notes with interest the adoption of Decree No. 6.481 of 12 June 2008 [Decree No. 6.481], which approves a detailed list of over 90 of the worst forms of child labour in which it is prohibited to employ young persons under 18 years of age. It also notes that Order No. 20/2001 has been abolished by Order No. 88 of 28 April 2009.

However, the Committee notes that, under section 2(1) of Decree No. 6.481, the prohibition on employing young persons under 18 years of age in hazardous work may be lifted. Hence, under the terms of paragraph 1 of section 2(1), it is possible to employ a minor aged 16 or over with the authorization of the Ministry of Labour and Employment further to consultation with the employers’ and workers’ organizations concerned, provided that the health, safety and morals of the young persons are fully guaranteed. Moreover, according to paragraph 2 of section 2(1) of Decree No. 6.481, this authorization must be accompanied by a detailed technical notice, signed by a professional person legally authorized to act in occupational safety and health matters certifying that the young persons will notice be exposed to risks which could endanger their health, safety or morality. This note must be filed with the decentralized unit of the Ministry of Labour and Employment of the district in which the work takes place.

The Committee reminds the Government that under Article 3(3) of the Convention, young persons over 16 years of age may be authorized to perform dangerous work provided that their health and safety are fully protected and they have received adequate specific instruction or vocational training in the relevant branch of activity. However, the Committee notes that section 2(1) of Decree No. 6.481 is not fully in line with Article 3(3) of the Convention. Even though section 2(1) gives effect to the first condition laid down by this provision of the Convention, namely that the health and safety of the young persons concerned are fully protected, it does not state that young persons over 16 years of age must have received adequate specific instruction or vocational training in the relevant branch of activity. The Committee therefore requests the Government to take the necessary steps to bring the national legislation into conformity with Article 3(3) of the Convention and to prescribe that young persons over 16 years of age may be authorized to perform hazardous work provided that they have received adequate specific instruction or vocational training in the relevant branch of activity.

Article 6. Apprenticeships. With reference to its previous comments, the Committee notes the information supplied by the Government, particularly the statistics concerning the number of apprentices registered between January and May 2008 throughout the territory of Brazil. It also notes the Government’s statement to the effect that a national apprenticeship register has been created, designed to include qualified technical and vocational training bodies.