Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Minimum Age Convention, 1973 (No. 138) - Chile (Ratification: 1999)

The Committee notes with interest the Government’s first report.

Article 2, paragraph 1, of the Convention. 1. Scope of application. Under the terms of section 1, the Labour Code and its subsidiary legislation applies to labour relations between employers and workers. The Committee notes that by virtue of this provision the national legislation governing labour rights does not apply to employment relationships which are not based on a contract, such as self-employment. The Committee reminds the Government that the Convention applies to all sectors of economic activity and that it covers all forms of employment or work, whether or not there is a contractual employment relationship and whether or not the work is remunerated. It therefore requests the Government to provide information on the manner in which the protection envisaged by the Convention is ensured for children exercising an economic activity on their own account.

2. Minimum age for admission to employment or work. The Committee notes that section 13(2) of the Labour Code provides that, with the authorization of certain persons, young persons between the age of 16 and 18 years may be parties to a labour contract. Section 13(6) lays down that the provisions of subsection 2 respecting the minimum age for admission to employment or work shall not apply to married women, whose situation is governed by section 150 of the Civil Code. Under the terms of subsection 1 of section 150 of the Civil Code, a married woman may freely exercise an occupation irrespective of her age. In accordance with the legislation governing marriage, a man over 14 years of age and a women over 12 years of age may marry, with the authorization of certain persons where they are under 18 years old (section 4 of the Act respecting civil marriage of 1884 and sections 26 and 106 of the Civil Code). The Committee notes that a joint reading of these provisions shows that a woman over 12 years of age could marry and work. It reminds the Government that the Convention does not envisage any exception to the minimum age for admission to employment or work, namely 15 years in the case of Chile, by reason of the marital status of young persons, whether they are girls or boys. It therefore requests the Government to provide information on this subject and on the measures adopted or envisaged to ensure that the provisions respecting the minimum age for admission to employment or work set out in the Labour Code also apply to married women between the ages of 12 and 15 years. Furthermore, the Committee requests the Government to provide information on the situation of married men aged between 14 and 15 years.

The Committee also notes that, by virtue of section 10 of Act No. 3654 of 1930, respecting compulsory primary education, persons who employ as domestic workers children who have not completed their compulsory schooling are compelled to enrol them in a school and facilitate their regular school attendance. The Committee notes that this provision does not specify the minimum age for admission to employment in domestic work. In view of the fact that the Government specified 15 years as the minimum age for admission to employment or work when ratifying the Convention, and has not excluded from the scope of the Convention certain categories of employment or work, in accordance with Article 4, the Committee requests it to take the necessary measures to ensure that the national legislation provides that no person under 15 years of age shall be employed as a domestic worker.

Article 2, paragraph 2. The Committee notes that section 13(2) of the Labour Code, as amended by Act No. 19.684 of 20 June 2000, provides that young persons between 16 and 18 years of age may be parties to a contract of employment with the authorization of certain persons. The Committee notes with interest that this amendment raised the minimum age for admission to employment or work set out in the national legislation from 15 to 16 years. The Committee reminds the Government that, under the terms of Article 2, paragraph 2, of the Convention, it may by a further declaration inform the Director-General that it is raising the minimum age previously specified.

Article 3, paragraph 2. The Committee notes that section 14(1) of the Labour Code provides that young persons under 18 years of age may not be admitted to work requiring excessive strength or to an activity liable to be hazardous to their health, safety or morals. It also notes that, with the exception of section 15(1) of the Labour Code, which provides that young persons under 18 years of age may not work in taverns or other establishments of this type or in places where alcohol is consumed, the national legislation does not appear to determine types of work which are hazardous. The Committee reminds the Government that Article 3, paragraph 2, of the Convention provides that hazardous types of work shall be determined by national laws or regulations, after consultation with the organizations of employers and workers concerned. It therefore requests the Government to take the necessary measures to determine in the national legislation the types of employment or work which are likely to jeopardize the health, safety or morals of young persons under 18 years of age. It also requests the Government to provide information on the consultations held with the organizations of employers and workers concerned.

Article 6. The Committee notes that apprenticeship contracts are regulated by sections 78 to 87 of the Labour Code. Under the terms of section 79 of the Labour Code, only workers under 21 years of age may be parties to an apprenticeship contract. While noting the information provided by the Government in its report to the effect that the national legislation does not authorize work by persons under 14 years of age in enterprises, the Committee notes that the Labour Code does not contain provisions establishing the minimum age to be party to an apprenticeship contract. It reminds the Government that Article 6 of the Convention permits work done by persons of at least 14 years of age in enterprises in the context of an apprenticeship programme. The Committee therefore requests the Government to indicate whether the national legislation contains provisions establishing a minimum age to be party to an apprenticeship contract. It also requests the Government to provide information on apprenticeship programmes in practice.

Article 7. The Committee notes that, by virtue of section 13(3) of the Labour Code, young persons of 15 and 16 years of age may, with the authorization of certain persons, perform light work, on condition that: (a) they have completed their compulsory schooling; and (b) the work is not prejudicial to their health and development and does not interfere with their school attendance or their participation in an educational programme. The Committee requests the Government to indicate the activities in which employment or work could be authorized and to provide information on the applicable conditions of work, particularly with regard to the hours of work and conditions of employment or work, in accordance with Article 7, paragraph 3, of the Convention.

Article 8. The Committee notes that under section 15(2) of the Labour Code, young persons may participate in artistic performances with the authorization of their legal representative and the youth court judge. However, it notes that section 16 of the Labour Code provides that, in specifically defined cases and with the authorization of a legal representative or the youth court judge, persons under 15 years of age may be parties to a contract involving persons or entities related to the theatre, cinema, circus, radio, television or other similar activities. The Committee reminds the Government that, in accordance with Article 8, paragraph 1, of the Convention, permits to participate in artistic performances have to be granted on an individual basis by the competent authority, after consultation with the organizations of employers and workers concerned. Consequently, while the youth court judge may be mandated to grant permits as the competent authority, the authorization of the young person’s legal representative is not sufficient to fulfil the requirements of the Convention. The Committee therefore requests the Government to provide information on any measures adopted or envisaged to ensure that permits to be party to a contract involving persons or entities related to the theatre, cinema, circus, radio, television or other similar activities, as envisaged in section 16 of the Labour Code, are granted in conformity with the conditions set forth in Article 8, paragraph 1, of the Convention. It also requests the Government to provide information on the procedures relating to permits and the conditions to which permits are subjected, particularly with regard to hours of work and conditions of employment or work, as well as on the number and nature of the permits granted.

Part V of the report form. The Committee notes the statistics provided by the Government in its report. It also notes the concern expressed by the Committee on the Rights of the Child in its Concluding Observations on the Government’s second periodic report at the large number of children, including those under 15, who are exploited economically, especially in the farming sector, and the large number who have to leave school because they cannot reconcile work and school (CRC/C/15/add.173, April 2002, paragraph 49). The Committee requests the Government to provide information on the manner in which the Convention is applied in practice, including, for example, statistical data on the employment of children and young persons, particularly in the agricultural sector, extracts from the reports of inspection services and information on the number and nature of the contraventions reported. It also requests the Government to provide information on education, and particularly to provide statistics on school attendance and drop-out rates.

The Committee requests the Government to keep it informed of progress made in enacting or amending the legislation. In this regard, it reminds the Government that it may avail itself of ILO technical assistance to bring its legislation into conformity with the Convention.