Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

Minimum Age Convention, 1973 (No. 138) - Costa Rica (Ratification: 1976)

The Committee notes the information provided by the Government in its reports and the comments made by the Trade Union of Employees of the Ministry of Finance (SINDHAC), the Transport Workers Union of Costa Rica (SICOTRA) and the Rerum Novarum Confederation of Workers (CTRN). These comments were forwarded to the Government on 22 September 2000, although no reply has been received from the Government. While awaiting the Government’s reply, the Committee refers to the comments made by the above workers’ organizations in this observation.

Article 1 of the Convention, in relation with Part V of the report form.  The Committee notes that, according to the comments made by the above trade unions and confederation, some 147,087 children and young persons between the ages of 15 and 17 years work, of whom 66,762 are under the age of 15. The Committee also notes that the hours worked by the children and young persons vary according to their age as follows: the age group from five to 11 years works for seven hours a week; the age group from 12 to 14 years works for 24 hours a week; and the 15 to 17 year age group works for 39 hours a week.

Furthermore, according to this information, the economically active population of children and young persons includes a high percentage of seasonal workers for the coffee and sugar cane harvests and other agricultural activities, with their levels of employment declining during the school term. Nevertheless, almost half of the economically active children and young persons work throughout the year, that is between seven and 12 months a year, during a reference period from July 1997 to June 1998.

The Committee also notes the information provided by the Government that one of the principal outcomes following the evaluation of the National Plan for the Eradication of Child Labour was the adoption of administrative directives concerning the participation of children and adolescents in the coffee harvest, as well as the registration of persons under 15 years of age. The Committee requests the Government to provide information on the results of these measures.

The Committee notes in particular the information supplied by the Government in the document entitled Hazardous and unhealthy activities and work processes for workers over 15 and under 18 years of age. The document indicates that the number of young persons between five and 17 years of age engaged in economic activities amounts to 13.1 per cent of the population. Some 68.8 per cent of the population of children and adolescents in the country are engaged in regular work, principally in the agricultural sector, industry, commerce and construction. According to the data of the National Insurance Institute, some 4,191 work-related accidents to minors were reported in 1997, principally in the sectors referred to above. According to the information provided by the workers’ organizations, the majority of young persons who work (80 per cent) are active in areas of low productivity, such as the traditional rural sector, the urban informal sector and domestic service. The above organizations indicate that only 20 per cent of young persons who work are engaged in the modern sector as employees.

With regard to compulsory school attendance, the Government indicates that, in accordance with the provisions of sections 78 and 92 of the Code of Children and Young Persons, and article 78 of the political Constitution of Costa Rica, children are guaranteed a minimum level of education until the age of 15 years on average. Nevertheless, according to the Government, around 15 per cent of the population of between five and 11 years of age, about 20 per cent of the population of between 12 and 14 years of age and 42.6 per cent of the population aged from 15 to under 18 years who are engaged in work do not attend school. The situation is worse in the rural sector. The comments made by the above workers’ organizations indicate that the levels of school drop-out are extremely high. Indeed, according to this information, some 52 per cent of all young persons who are engaged in work abandon school, while some 47 per cent of those who both work and study are behind in their education.

The Committee notes the comment made by the workers’ organizations concerning the problem of "migrant child labour". According to the data provided, 12 per cent of the migrant population from Nicaragua (over 102,108 Nicaraguan nationals in Costa Rica) is aged between 12 and 19 years. This group of children and young persons is, according to the above comments, more vulnerable than nationals of Costa Rica when entering the labour market, taking into account the conditions to which they are exposed.

The Committee also notes the information contained in the second periodic report submitted by the Government to the 595th and 596th meetings of the Committee on the Rights of the Child (CRC/C/65/Add.7), held in January 2000. In this report, the Government indicates that:

-  the entry of minors into the labour market takes place essentially at two points: at the age of ten years and at the age of 13. However, most children enter the labour market between the ages of 13 and 15;

-  out of the total number of minors working in 1995, only 51.4 per cent were receiving regular schooling, the remaining 48.6 per cent having completed no more than primary school;

-  of the minors at social risk, 45.5 per cent have no activity. They wander around the streets of urban areas, where they are detained or referred to the Reception and Referral Centre of the Ministry of Justice. The formal and informal activities they do take up inevitably place them at risk, either because the jobs are considered dangerous (building, agriculture, fishing, etc.) or because they require little skill and are poorly paid (domestic service, peddling, etc.).

The Committee expresses its concern at the number of girls and boys who are in the labour market in violation of the national legislation, the number of girls and boys who are engaged in hazardous and unhealthy activities and who are at risk in the streets. The Committee also expresses its concern at the high percentage of school drop-outs and at the fact that, as indicated by the above workers’ organizations, these figures show that entry into the labour market has a negative impact on compliance with compulsory schooling. The Committee hopes that the Government will take the necessary measures on an urgent basis to resolve these serious problems and requests it to provide information on the measures adopted and their results.

General minimum age.  In its previous comments, the Committee referred to the amendment of the Labour Code (Act No. 7680 of 1997), which in sections 88 and 89 would set the minimum age for work at 12 years of age. The Committee noted that the Bill was vetoed by the Executive on 24 July 1997 on the grounds of the unconstitutionality of these sections, that it was returned to the legislature, and that the process of amending the Labour Code to bring it into conformity with the Convention is still continuing.

The Committee notes the information provided by the Government to the effect that the Code of Children and Young Persons (Act No. 7739 of 6 February 1998) constitutes the "… minimum legal framework for the comprehensive protection of the rights of young persons […] Provisions of any rank which provide them with greater protection or benefits shall prevail over the provisions of this Code". The Government also indicates that, in accordance with the principle of the non-retroactivity of legislation, unless provided to the contrary, all measures which are contrary to the Code, including those set out in bills awaiting examination or which have been vetoed, are tacitly repealed and in any case subordinate to the legislation which is in force. According to the Government, the minimum age for access to employment within the national legal system, in accordance with sections 78 and 92 of the Code of Children and Young Persons, is set at 15 years.

The Committee once again requests the Government to provide information on any progress made in the amendment of the Labour Code to bring it into line with the Code of Children and Young Persons and into conformity with the Convention.

Hazardous work.  In its previous comments, the Committee referred to the measures which had been taken or were envisaged to determine, in consultation with organizations of employers and workers, the types of work or employment prohibited for persons under 18, in accordance with Article 3, paragraph 2, of the Convention. The Committee notes the information contained in the Government’s report to the effect that the "National Plan for the Prevention and Progressive Elimination of Child Labour and the Protection of Young Persons at Work" envisages the preparation by the competent authorities of regulations governing activities considered to be hazardous or intolerable carried out by persons over the age of 15 and under the age of 18.

The Committee also notes the document prepared by the Occupational Health Council entitled Hazardous and unhealthy activities and work processes for workers over 15 and under the age of 18. This document identifies a series of occupations or work processes for which it is recommended that the employment of persons under 18 years of age should be totally prohibited. The Committee requests the Government to continue providing information on the measures which are taken with a view to the adoption of regulations governing these activities or processes. The Committee requests the Government to provide a copy of the text as soon as it is adopted. The Committee also recalls that Article 3, paragraph 2, provides that the types of employment or work which are likely to jeopardize the health, safety or morals of young persons under the age of 18 years shall be determined by national laws or regulations or by the competent authority, after consultation with organizations of employers and workers concerned, where such exist. The Committee requests the Government to indicate whether the organizations of employers and workers concerned have been consulted.

The Committee notes Decree No. 11074-TSS of May 1980 respecting the maximum limits for the manual transport of loads by women and men between 16 and 21 years of age and requests the Government to provide a copy of this Decree.

The Committee notes that the Code of Children and Young Persons provides in section 101 for financial penalties for violations of sections 88, 90-95 and 98 of the Code. The Committee requests the Government to indicate whether such penalties have been imposed, particularly for violations of section 94 respecting the types of work which are prohibited for young persons. In any case, the Committee wishes to emphasize that, in accordance with Article 3 of the Convention, the minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardize the health, safety or morals of young persons shall not be less than 18 years. The Committee has already noted that, in accordance with section 94 of the Code of Children and Young Persons, it is prohibited to engage "young persons" in unhealthy or hazardous work. However, section 2 of the above Code provides that "a young person is […] any person over 12 years of age and under 18 years". The Committee therefore requests the Government to take the necessary measures to ensure that the national legislation gives effect to the provisions of Article 3 of the Convention by setting the minimum age for the admission of young persons to unhealthy or hazardous work at 18 years of age.

Exceptions as to light work.  With reference to its previous comments, the Committee once again recalls that section 89 of the Labour Code permits young persons between the ages of 12 and 15 years to work a maximum of five hours a day. The Committee notes the information provided by the Government to the effect that the Code of Children and Young Persons establishes in section 92 a "prohibition to work" by persons under 15 years of age, which repeals the provisions of section 89 of the Labour Code for the reasons stated under the point general minimum age. The Government adds that the exceptions envisaged in Article 7 of the Convention, which permits as an exception the admission to employment of young persons under 15 years of age on light work, are at the limits of the national provisions which are in force.

Taking into account the statistical data provided by the Government, to which the Committee refers in this observation, concerning the number of young persons under 13 years of age who enter the labour market, the Committee recalls that exceptions to the requirement of the minimum age for work are only allowed in the case of light work under the conditions set out in Article 7 of the Convention, and only in the case of young persons as from 13 years of age. The Committee requests the Government to provide information on any progress achieved in relation to measures which have been adopted or are envisaged to bring the Labour Code into line with the Code of Children and Young Persons in order to give effect to the Convention.