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

Minimum Age Convention, 1973 (No. 138) - Ecuador (Ratification: 2000)

The Committee notes the information supplied by the Government in its first report. It notes with interest that on 28 March 2002, Ecuador renewed until 2007 the Memorandum of Understanding (MOU) concluded with ILO/IPEC, and that it adopted the Children’s and Young Persons’ Code on 3 January 2003.

Article 2 of the Convention. 1. Specification of a minimum age of 14 years. The Committee notes that upon ratifying the Convention, Ecuador specified a minimum age of 14 years for admission to employment or work under Article 2, paragraph 4, of the Convention. In its report, the Government states that the economic and legal reasons for specifying this minimum age still exist and that 14 years must be maintained as the minimum age. The Committee requests the Government to indicate whether consultations have been held with employers’ and workers’ organizations with a view to fixing the minimum age at 14 and, if so, to provide information thereon. It also asks the Government to continue to provide information in its next report on the reasons for its decision to specify a minimum age of 14 years under Article 2, paragraph 5, of the Convention.

The Committee notes that the general conclusions and recommendations of the report of August 2002 concerning the inspection programming workshop on child labour in banana plantations, which the Government sent in 2001 with its first report on the application of the Worst Forms of Child Labour Convention, 1999 (No. 182), advise prohibiting subcontracted work by minors. The Committee observes that the national legislation does not appear to regulate subcontracted work. It therefore asks the Government to indicate whether the minimum age for admission to employment or work applies to children who carry out subcontracted work.

2. Raising of the minimum age originally specified. The Committee notes that section 134(1) of the Labour Code sets the minimum age for admission to employment at 14 years, as specified by Ecuador when it ratified the Convention. It notes, however, that section 82 of the Children’s and Young Persons’ Code of 2003 sets the minimum age for admission to employment for all types of work at 15 years. The Committee draws the Government’s attention to the fact that Article 2, paragraph 2, of the Convention provides for States which raise the minimum age for admission to employment or work initially specified so to inform the Director-General of the International Labour Office by further declarations.

3. Age of completion of compulsory schooling. The Committee requests the Government to indicate the age of completion of compulsory schooling and to send a copy of the relevant provisions of the national legislation.

Article 3. Determination of hazardous work. The Committee notes with interest that under section 138(1) of the Labour Code, women and men of less than 18 years of age may not be employed in industries or in occupations which are deemed to be dangerous or insalubrious, and the latter are to be listed in special regulations. It further notes that section 138(2) of the Labour Code lists the industries to which this prohibition applies. In its first report, the Government indicates that with a view to listing and updating the jobs which are dangerous and prohibited for minors and children, two national consultations have been held, one with civil society and interested state bodies, including organizations representing workers and employers countrywide, and the other with the native peoples of Ecuador. Following the consultations, two reports were produced which will make it possible to update the work prohibited for minors and to draw up regulations, in accordance with section 138 of the Labour Code. The Committee requests the Government to provide a copy of the regulations as soon as they are adopted.

The Committee notes with interest that section 87(1) of the Children’s and Young Persons’ Code of 2003 prohibits work by young persons, namely persons aged from 12 to 18 years (section 4 of the 2003 Code) in areas such as mines, dump sites and the extractive industries and activities such as the handling of explosives or substances which are dangerous for physical development or health, in places where alcoholic beverages are sold and in jobs requiring the use of dangerous machinery. It also notes that pursuant to section 87(2) of the 2003 Code, the National Council for Children and Young Persons will determine the types of work which are dangerous, harmful or hazardous for young persons. In so determining, the Council must take account of the risks to the life and personal safety, health, education, security and overall development of young people. The Committee requests the Government to indicate whether the National Council for Children and Young Persons has determined the types of work which are hazardous and, if so, to provide copies of the relevant legislative provisions.

The Committee requests the Government to indicate whether the list of hazardous jobs provided for in section 138(2) of the Labour Code has been replaced with the one set out in section 87(1) of the Children’s and Young Persons’ Code of 2003, or whether the two lists are complementary.

Article 4. Exclusion from the application of the Convention. The Committee notes that in its first report the Government refers to sections 268-276 of the Labour Code which regulate domestic service. It further notes that under section 134(1) of the Labour Code, the minimum age for admission to employment or work does not apply to domestic service. This suggests to the Committee that the Government wishes to exclude domestic service from the application of the Convention. The Committee notes, however, that under section 82 of the Children’s and Young Persons’ Code of 2003, the minimum age for admission to employment for all types of work applies to domestic service as well. Furthermore, section 91(1) of the Children’s and Young Persons’ Code provides that young persons carrying out an economic activity in domestic service shall have the same rights and safeguards as young workers in general.

The Committee reminds the Government that Article 4, paragraph 1, of the Convention allows the competent authority not to apply the Convention to limited categories of employment or work in respect of which special and substantial problems of application would arise. It also provides that the organizations of employers and workers concerned must be consulted beforehand. The Committee further recalls that under Article 4, paragraph 2, of the Convention, if a Member which ratifies the Convention decides not to apply it to certain categories of employment, it must give the reasons for such exclusion. The Committee therefore requests the Government to state whether, as indicated in its first report, it intends to exclude domestic service from the application of the Convention and, if so, to give the reasons.

Article 6. 1. Apprenticeship. The Committee notes that, under section 134 of the Labour Code, the minimum age of 14 years for admission to employment does not apply to work carried on in the course of an apprenticeship. It further notes that sections 157-168 of the Code regulate apprenticeship. Section 158(4) of the Labour Code provides that for a young person aged 12 to 17 years, the apprenticeship contract must contain a clause showing that the consent of the parents, ascendants or guardians or, failing such consent, authorization from the juvenile court, has been obtained. Furthermore, under section 90 of the Children’s and Young Persons’ Code of 2003, the apprenticeship contract must contain a clause concerning the methods whereby knowledge is imparted to the young person, namely any person from 12 to 18 years of age (section 4 of the 2003 Code). Since no other provisions of the Labour Code or the Children’s and Young Persons’ Code of 2003 establish a specific age for admission to apprenticeship, the Committee understands that a young person may carry out an apprenticeship from the age of 12 years. It reminds the Government, however, that Article 6 of the Convention allows work to be done by persons at least 14 years of age in undertakings as part of a training programme. The Committee accordingly asks the Government to provide information on the measures taken or envisaged to ensure that no one under 14 years of age carries out an apprenticeship. It also asks the Government to provide practical information on apprenticeship programmes.

2. Vocational training. The Committee notes that under section 92 of the Children’s and Young Persons’ Code of 2003 boys, girls and young persons may engage in training activities in which work is an important component of the overall training. The activities must be so performed as to be compatible with the health, capacity, physical status and mental development of the boys, girls and young persons and must respect their moral and cultural values. In programmes that include training activities, priority must be given to teaching requirements. The Committee requests the Government to provide information on the types of employment or work which are regarded as training activities within the meaning of section 92 of the Children’s and Young Persons’ Code of 2003, including examples of such programmes.

Article 7. Light work. The Committee notes that under section 134(2) of the Labour Code, the juvenile court may authorize work by young persons from 12 to 14 years of age provided they have completed the minimum period of compulsory schooling set in the law, or attend evening courses or other basic education courses. The Committee further notes that under section 134(3) of the Labour Code, the juvenile court may authorize work by minors where it has been demonstrated that they need to work for their own subsistence, or that of their parents or ascendants with whom they live, or that of their brothers and sisters who are incapable of working. Furthermore, section 82(3) of the Children’s and Young Persons’ Code of 2003 provides that the National Council for Children and Young Persons may, of its own accord or at the request of a public or private body, authorize work by persons under 15 years of age, in conformity with the conditions laid down by the Code, the law or international instruments ratified by Ecuador.

The Committee reminds the Government that Article 7, paragraphs 1 and 4, of the Convention allows national laws or regulations to permit persons 12 to 14 years of age to be employed in light work provided that the latter is: (a) not likely to be harmful to their health or development; (b) not such as to prejudice their attendance at school, their participation in vocational orientation or training programmes approved by the competent authority or their capacity to benefit from the instruction received. The Committee further reminds the Government that under paragraph 3 of Article 7, the competent authority shall determine the activities in which light work may be permitted and shall prescribe the number of hours during which and the conditions in which such employment or work may be undertaken. The Committee points out that the abovementioned provisions of the Labour Code and Children’s and Young Persons Code are broader in scope than the Convention allows in Article 7, since they allow normal daily work by persons under the minimum age specified by Ecuador on ratifying the Convention, whereas paragraphs 1 and 4 of Article 7 allow the employment in light work of persons 12 to 14 years of age. The Committee accordingly requests the Government to take the necessary steps to ensure that no one under 12 years of age may be allowed to engage in light work and that, where work is authorized from the age of 12 years, the employment or working conditions are consistent with the provisions of Article 7 of the Convention.

Article 8. Artistic performances. The Committee notes from the information supplied by the Government in its first report that the legislation makes no provision for the exceptions allowed by this provision of the Convention. It notes, however, that section 52(1) of the Children’s and Young Persons’ Code of 2003 prohibits participation by boys, girls and young persons, namely persons under 18 years of age (section 4 of the 2003 Code), in programmes, advertisements, pornographic productions and performances unsuited to their age. The Committee understands that section 52(1) of the Code allows boys, girls and young persons to participate in performances provided they are deemed to be suited to their age. It reminds the Government that under Article 8, paragraph 1, of the Convention, the competent authority may waive the minimum age of 14 years, specified by Ecuador, for admission to employment or work and, after consultation with the organizations of employers and workers concerned, may grant permission in individual cases for such purposes as participation in artistic performances. It also reminds the Government that under Article 8, paragraph 2, the permits so granted must limit the number of hours during which and prescribe the conditions in which employment or work is allowed. The Committee requests the Government to indicate whether, under section 52(1) of the Code, boys, girls and young persons under 14 years of age may participate in performances provided they are not considered unsuitable for their age and, if so, to provide information on the authorization procedure and the requirements for the grant of permits.

Article 1 and Part V of the report form. The Committee notes that according to the statistical data contained in the report published by the ILO/IPEC in 2001 on child labour and mine work in Ecuador, sent by the Government with its report on the application of Convention No. 182, Ecuador has the highest child labour rate in Latin America: 32.5 per cent of the population aged from 5 to 9 years and 48.1 per cent of the population aged from 10 to 17 years, in other words more than 1 million boys, girls and young persons. Of these, 63 per cent work 40 or more hours a week and more than 390,000 young people in work are unable to study. The Committee also notes that, according to statistics contained in a document published by IPEC South America (Time-Bound Programme), also sent with the Government’s report on the application of Convention No. 182, approximately 400,000 boys and girls who work have not completed their basic education.

The Committee notes with interest that the Government is collaborating with the ILO/IPEC in order to eliminate child labour. In 1997, it established to that end the National Committee for the Gradual Elimination of Child Labour (CONEPTI), made up of the Ministries of Labour and Human Resources, and Education, Culture and Well-Being, and of national employers’ and workers’ organizations, the National Institute for the Child and Family (INNFA) and representatives of the ILO and UNICEF who sit in an advisory capacity. The Committee also notes that according to a report published by IPEC South America in July 2001 (Studies and statistics - National diagnosis), Ecuador has made considerable progress in standards to regulate the protection of children. The Committee observes, however, that according to the abovementioned statistics the practice observed is in contradiction with the legislation and the Convention. It notes in this connection that, according to the document published by IPEC South America (Time-Bound Programme), child labour exists in the following sectors in particular: gold mining, construction, banana, sugar and coffee plantations, and flower growing. It accordingly asks the Government to provide detailed information on the measures taken to improve the situation of these children. It also requests the Government to provide statistical data on the employment of children and young persons, extracts of reports by the inspection services, particularly on inspections carried out in the gold-mining, construction, banana, sugar cane, coffee and flower sectors, and to give details of the number and nature of the contraventions recorded. It trusts that the Government will continue to collaborate with the ILO/IPEC.

The Committee notes that some provisions of the Labour Code that concern child labour are inconsistent with the Children’s and Young Persons’ Code of 2003. The Committee would be grateful if the Government would take the necessary steps to align the Labour Code and the Children’s and Young Persons’ Code of 2003 in order to avoid any ambiguity in law and to ensure proper application of the Convention.