Observation (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 138) sur l'âge minimum, 1973 - Bolivie (Etat plurinational de) (Ratification: 1997)

Autre commentaire sur C138

Observation

Demande directe

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The Committee notes the joint observations of the International Organisation of Employers (IOE) and the Confederation of Private Employers of Bolivia (CEPB), received on 31 August 2018, the Government’s report and the in-depth discussion on the application of the Convention by the Plurinational State of Bolivia that took place in the Committee on the Application of Standards at the 107th Session (June 2018) of the International Labour Conference.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 107th Session, May–June 2018)

Article 2(1) of the Convention. Minimum age for admission to employment or work and labour inspection. In its previous comments, the Committee noted the observation made by the International Trade Union Confederation (ITUC) concerning the adoption by the Government of the new Code for Children and Young Persons of 17 July 2014, amending section 129 of the previous Code through the addition of section 129(II), which reduces, under exceptional circumstances, the minimum age for admission to work for children from 14 to 10 years for own-account workers, and reduces it to 12 years for children in an employment relationship. The ITUC observed that these exemptions from the minimum age of 14 years are incompatible with the exceptions to the minimum age authorized for light work established under Article 7(4) of the Convention, which does not authorize work by children under 12 years of age. The Committee also noted the ITUC’s statement that authorizing children to work from the age of 10 years would inevitably affect their compulsory schooling, which, in the Plurinational State of Bolivia, consists of a fixed period of 12 years, namely at least up to 16 years of age. The Committee also noted the joint observations of the IOE and the CEPB indicating that the high proportion of work in the informal economy (70 per cent) encourages child labour, since it is not subject to labour inspection, and that there is no child labour in the formal sector.

Also in its previous comments, the Committee deeply deplored the Government’s indication that the amendments made to section 129 of the Code for Children and Young Persons would remain in place as provisional measures. The Government indicated that the new exemptions from the minimum age of 14 years, as set out in section 129 of the Code, can only be registered and authorized on condition that the work done does not jeopardize the child’s right to education, health, dignity and general development. Furthermore, the Committee expressed deep concern at the distinction made between the minimum age fixed for own-account child workers (10 years), and the minimum age fixed for children engaged in an employment relationship (12 years). Lastly, the Committee noted that the Ministry of Labour, Employment and Social Welfare was giving effect to the Convention through integrated and inter-sectoral routine and complaint-based inspections conducted by the services for the protection of children and young persons in order to highlight cases involving work by children under 14 years of age.

Recalling that the objective of the Convention is to eliminate child labour and that it encourages the raising of the minimum age, but does not authorize its reduction once the minimum age has been set (14 years at the time of ratification of the Convention by the Plurinational State of Bolivia), and while duly noting the positive results of the economic and social policies implemented by the Government, the Committee urged the Government to repeal the provisions of the legislation setting the minimum age for admission to employment or work and to immediately prepare a new law, in consultation with the social partners, increasing the minimum age for admission to employment or work in conformity with the Convention. Lastly, the Committee observed the Government’s indication that there are 90 labour inspectors (four more than in 2012), and it asked the Government to provide the labour inspectorate with increased human and technical resources and training for inspectors with a view to ensuring a more effective application of the Convention.

The Committee notes that the Government representative drew the Conference Committee’s attention to Decision No. 0025/2017 of the Constitutional Court of 21 July 2017, which declared section 129(II) of the Code for Children and Young Persons and its related sections (130(III); 131(I), (III) and (IV); 133(III) and (IV); and 138(I)) to be unconstitutional. The Conference Committee noted that the Constitutional Court used Articles 1, 2 and 7 of the Convention as a reference point and the legal basis for its decision. In its conclusions, the Conference Committee urged the Government to adapt the national legislation, in consultation with the most representative employers’ and workers’ organizations, following the repeal of the provisions of the Code for Children and Young Persons by the Constitutional Court, in accordance with the Convention. The Conference Committee also urged the Government to provide the labour inspectorate with increased human, material and technical resources, in particular in the informal economy, in order to ensure the more effective application of the Convention in law and in practice.

The Committee notes the joint observations of the IOE and the CEPB, asking the Government to bridge the legal gap left by the Constitutional Court decision by amending the legislation to bring it into conformity with the Convention. The Committee notes with interest the Government’s indication in its report that, further to the decision of the Constitutional Court, the minimum age for access to employment or work established in section 129 of the Code for Children and Young Persons is 14 years, in conformity with the Convention. However, the Committee notes the Government’s indication that, since the decision of the Constitutional Court is binding, there is no need to revise the Code for Children and Young Persons since the provisions which are contrary to the Convention no longer have the force of law. Moreover, the Committee notes the Government’s indication that the number of labour inspectors has increased to 103 since 2017 and that the labour inspectorate used mobile offices in 2016–17 to carry out 1,874 inspections in connection with child labour and forced labour, of which 30 per cent were referred to the courts. While noting that section 129(II) of the Code for Children and Young Persons and its related sections have been declared unconstitutional by the Constitutional Court, the Committee also notes the importance in legal terms and in accordance with the ILO Constitution, of having the legislation being in conformity with the ratified Conventions. Accordingly, the Committee requests the Government, in consultation with the employers’ and workers’ organizations, to take all necessary steps to amend the Code for Children and Young Persons so as to fix the minimum age for access to employment or work at 14 years, in conformity with the Convention and the decision of the Constitutional Court in order to eliminate any confusion and thereby minimize the risk of non-compliance with the Convention. It requests the Government to send information on all progress made in this regard. The Committee also requests the Government to continue its efforts to strengthen the capacities of the labour inspectorate and to indicate the methods used to ensure that the protection provided for by the Convention is also afforded to children working in the informal economy.

Article 6. Apprenticeships. In its previous comments, the Committee noted that, under sections 28 and 58 of the General Labour Act, children under 14 years of age may work as apprentices with or without pay, and it reminded the Government that, under Article 6, the Convention does not apply to work done by persons at least 14 years of age in undertakings where such work is carried out as part of a course of education or a programme of training or vocational guidance. The Committee also noted the Government’s indication that labour inspectors were responsible for implementing measures to ensure that children under 14 years of age do not engage in apprenticeships. The Committee recognized that measures to reinforce the labour inspection services were essential to combat child labour, but noted that labour inspectors needed a basis in law consistent with the Convention to enable them to ensure that children are protected against conditions of work liable to jeopardize their health or development. It noted that, although the Government refers to Act No. 070 Avelino Siñani–Elizardo Pérez of 20 December 2010 which regulates the system of education and apprenticeships, this Act does not prescribe a minimum age for work as an apprentice.

The Committee notes once again with concern that the Government’s report still does not provide any new information on the steps taken to prohibit children under 14 years of age from engaging in apprenticeships. The Government merely indicates that sections 28–30 of the General Labour Act taken together with section 129 of the Code for Children and Young Persons fix the minimum age for apprenticeships at 14 years. However, the Committee notes that sections 28–30 of the General Labour Act do not prescribe the minimum age for signing an apprenticeship contract and do not make any reference to section 129 of the Code for Children and Young Persons. Recalling once again that it has been drawing the Government’s attention to this matter for over ten years, the Committee strongly urges the Government to take the necessary steps to harmonize the provisions of the national legislation with Article 6 of the Convention so as to fix without delay the minimum age for admission to employment or work at 14 years.

Article 7(1) and (4). Light work. The Committee previously noted that sections 132 and 133 of the Code for Children and Young Persons allow children between 10 and 18 years of age to perform light work, subject to the authorization of the competent authority, under conditions which limit their hours of work, do not endanger their life, health, safety or image, and do not interfere with their access to education. It recalled that under Article 7(1) and (4) of the Convention, the employment of persons in light work is permitted, under certain conditions, from 12 and not 10 years of age, and it therefore urged the Government to take the necessary steps to amend sections 132 and 133 of the Code for Children and Young Persons.

The Committee notes the Government’s indication that it does not consider it necessary to amend the legislation since Decision No. 0025/2017 of the Constitutional Court has invalidated the provisions of sections 132 and 133, which are contrary to the Convention. The Committee requests the Government, in consultation with the social partners concerned, in the light of the decision of the Constitutional Court, and the importance, in accordance with the ILO Constitution of having the legislation being in conformity with the ratified Conventions, to take the necessary steps to amend the Code for Children and Young Persons so that the age for admission to light work is fixed at no less than 12 years, in accordance with Article 7(1) and (4) of the Convention.

Article 9(3). Keeping of registers. In its previous comments, the Committee noted that, under section 138 of the Code for Children and Young Persons, registers for child workers are required in order to obtain authorization for work. The Committee observed that these registers include the authorization for children between 10 and 14 years of age to work. It also noted Decision No. 434/2016, which provides for the inclusion in a register of minors under 14 years of age who are engaged in work, and Decision No. 71/2016 created the Information System on Children and Young Persons (SINNA), which registers and contains information on the rights of the child, including information relating to children working on their own account or for a third party.

The Committee notes the Government’s indication that further to Decision No. 0025/2017 of the Constitutional Court declaring section 138(I) of the Code for Children and Young Persons unconstitutional, the SINNA system has been modified to enable the registration of young workers from the age of 14 and not 10 years. The Committee urges the Government, in consultation with the social partners, to take the necessary steps to amend the Code for Children and Young Persons so that, further to inclusion in the registers, only children who are at least 14 years of age may be permitted to work, in accordance with the Convention and the practice of the SINNA system.

The Committee reminds the Government that it may request technical assistance from the ILO in order to bring its law and practice into conformity with the Convention.

The Committee is raising other matters in a request addressed directly to the Government.