Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Minimum Age Convention, 1973 (No. 138) - Guatemala (Ratification: 1990)

Article 2, paragraph 1, of the Convention. Scope of application. In its previous comments, the Committee noted that, under section 3 of the Labour Code, the term "worker" covers any person offering his physical and/or intellectual labour to an employer under the terms of an employment contract or other employment relationship. Under section 31 of the Labour Code, minors of 14 years of age and above of either sex are able to consent to work and to receive and dispose freely of a wage agreed in advance. The Committee noted that, under these provisions, the Labour Code is not applicable to labour that does not arise from a contract, such as self-employment. It notes the Government’s information to the effect that the Labour Code does not contain provisions which guarantee to children working on their own account the protection provided for in the Convention, in as much as this type of work is mainly found in the sector of the informal economy.

The Committee notes, however, that, under section 65 of the Act concerning the full protection of children and adolescents of 2003, the expression "working adolescent in the informal sector" designates a minor over 14 years of age who performs an economic activity on his own account or for an employer engaging in commercial activities which are not subject to the tax or commercial legislation of the country. In addition, under section 66 of the 2003 Act, the work of adolescents under 14 years of age is prohibited in any activity. The Committee notes, therefore, that the Act concerning the full protection of children and adolescents of 2003 establishes a minimum age for children who work on their own account.

Article 3, paragraph 1. Age for admission to hazardous work. In its previous comments, the Committee noted that section 148(a) of the Labour Code prohibits the employment of "minors" in unhealthy and dangerous workplaces. It noted that the Labour Code does not contain any definition of the term "minor" and that it is therefore impossible to determine the minimum age at which a minor can be employed to perform hazardous work. In reply, the Government indicates that there is no minimum age for admission to hazardous work but that, under Article 3, paragraph 1, of the Convention, this age must not be less than 18 years. The Committee notes that a draft reform of the Labour Code has been submitted to the legislative authority for adoption. In this regard, it notes with interest that the draft reform of the Labour Code prohibits minors under 18 years of age from being employed in hazardous work. The Committee expresses the hope that the draft reform of the Labour Code will be adopted soon and requests the Government to provide information on all progress made in this regard.

Article 6. Apprenticeship. 1. Minimum age for apprenticeships. In its previous comments, the Committee noted that, under section 171 of the Labour Code, the length of an apprenticeship shall be fixed by contract, taking account of the age of the apprentice, the class, the teaching methods and the nature of the work. The General Labour Inspectorate must ensure that the length of the contract is respected. The Committee noted that section 171 of the Labour Code does not specify any minimum age for an apprenticeship and also notes that, under the terms of section 150 of the Labour Code, the General Labour Inspectorate can issue written authorization for normal day work by minors below 14 years of age. This authorization must state that the minor will be working as an apprentice. In this regard, the Government indicates that one of the measures adopted to ensure the application of the provisions of Article 6 of the Convention, stating that no minor under 14 years of age will be admitted to an apprenticeship, is the establishment of the Special Labour Inspection Unit by Ministerial Order 435B of 15 October 2003. This special unit is responsible for monitoring the application of labour and social welfare legislation in locations and workplaces where boys, girls and adolescents are known to be working. The Committee requests the Government to provide additional information on the Special Labour Inspection Unit, particularly on the manner in which this unit ensures in practice that no minor under 14 years of age will be admitted to an apprenticeship. It also requests the Government to provide information on the number of written authorizations granted to minors, stating their age and their conditions of work.

2. Regulations. The Committee noted that, under section 174 of the Labour Code, the executive authority, through the Ministry of Labour, Social Security and Public Education, can adopt regulations governing apprenticeships. In this regard, the Government indicates that no regulation has yet been adopted. The labour inspectorate is responsible for verifying whether apprenticeship contracts are in conformity with the provisions of the national legislation governing this type of contract. The Government also indicates that it hopes to adopt in the future a specific regulation on apprenticeships. The Committee requests the Government to send a copy of the regulation when it is adopted.

Article 7. 1. Age for admission to light work. In its previous comments, the Committee noted that, under section 150 of the Labour Code, the General Labour Inspectorate can give written authorization for normal day work for minors under 14 years of age. This authorization must state: (a) that the minor will be working as an apprentice, or is required to contribute to the family finances owing to the extreme poverty of his parents or guardians; (b) that the work involved is light work, the duration and intensity of which are compatible with the physical, mental and moral well-being of the minor; and (c) that school attendance requirements are met. The Committee requested the Government to indicate the measures taken or envisaged to guarantee that no person under 12 years of age is allowed to carry out light work. In response, the Government indicates that, further to tripartite consultations, the age for admission to light work in Guatemala is 12 years, in accordance with Article 7, paragraph 4, of the Convention. The Committee requests the Government to provide information on the number of written authorizations granted by the General Labour Inspectorate.

2. Types of light employment or work. In its previous comments, the Committee requested the Government to indicate the activities in which light work could be authorized, under section 150 of the Labour Code, and to indicate the conditions of employment. In response, the Government indicates that the types of light work are not determined. However, the General Labour Inspectorate scrutinizes every application for a work permit for a minor under 14 years of age. The purpose of this scrutiny is to establish that the work to be performed by the minor will not endanger his health or safety. The Government also indicates that this authorization is granted to a minor under 14 years of age only in very special cases and subject to proof that the minor is attending school and that the work is necessary for the family finances. The Committee requests the Government to indicate the types of light work in respect of which any authorizations have been granted.