Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

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

Article 2 of the Convention. Minimum age for admission to employment or work. Possibility for a married 12-year-old girl to work. With reference to its previous comments, the Committee notes that Act No. 19947 of 17 May 2004 on civil marriage repeals the Act of 10 January 1884 on civil marriage and that, by virtue of section 5(2) of the new Act, minors under 16 years of age may not marry.

Article 3, paragraph 2. Determination of hazardous types of employment or work. In its previous comments, the Committee noted that section 14(1) of the Labour Code prohibits the engagement of minors under 18 years of age in hazardous types of work. It also noted that, with the exception of section 15(1) of the Labour Code, which provides that minors under 18 years of age may not work in nightclubs or other similar establishments or in premises where alcohol is consumed, the national legislation did not appear to determine hazardous types of work. In this respect, the Committee noted the study entitled “Work by children and young persons in figures: National survey and register of the worst forms”, published at the beginning of 2004, which classified hazardous types of work. It requested the Government to communicate the list of hazardous types of work determined once it had been finalized and to provide information on the consultations held with the employers’ and workers’ organizations concerned. The Committee notes the Government’s indications that a commission was established in 2005 by the Ministry of Labour and Social Insurance and the Directorate of Labour, with the participation of the ILO, with the objective of formulating a list of types of work considered to be hazardous for young persons. The Committee notes that, following the commission’s meetings, the Ministry of Labour and Social Insurance was requested to initiate a process for the amendment of section 14 of the Labour Code. The Committee hopes that the process of amending this provision of the Labour Code will be commenced in the near future and requests the Government to provide information on any new developments in this respect.

Part V of the report form. Application of the Convention in practice. The Committee noted previously that, according to the study entitled “Work by children and young persons in figures: National survey and register of the worst forms”, 3 per cent, or a total of 107,676 girls, boys and young persons, were engaged in unacceptable work in Chile. Of this number, 36,542 were aged between 5 and 11 years and 31,587 between 12 and 14 years. Moreover, over 25,000 children and young persons worked in the agricultural sector in the central and southern parts of the country. According to the study, 98 per cent of children attended basic school. The Committee expressed concern at the situation of children under 15 years of age who are compelled to work in Chile and requested the Government to continue providing statistics and information on the application of the Convention in practice. The Committee notes the information provided by the Government in its report relating to the statistical data from the national labour survey conducted in 2004. However, it notes, in the same way as the Government, that the statistics only relate to work in the formal economy and do not take into account persons working on their own account, unpaid family workers and occasional workers, which are the activities in which most children work. The Committee once again expresses great concern at the situation of children under 15 years of age who are compelled to work in Chile and requests the Government to provide statistics and information on the nature, extent and trends of child labour, the number of children protected by the measures giving effect to the Convention, the number and nature of contraventions reported, the penal sanctions imposed, etc. To the extent possible, the data provided should be disaggregated by sex and age.

In its previous direct request, the Committee noted the Government’s indication that, in order to reply to the questions raised by the Committee, it would have to either consult other national public and private bodies and institutions or undertake research to find the relevant information. In view of the lack of economic and human resources, it had not been possible for the Government to reply to the questions raised by the Committee. The Committee therefore reiterated its previous comments. The Committee notes that, with the exception of the matters referred to above, the Government does not provide any information in its report. It is therefore bound to repeat its comments and urges the Government to provide information in its next report.

Article 1. National policy. The Committee notes with interest that, in the context of the National Policy for Children (2001-10), the National Committee on the Elimination of Child Labour and the Protection of Working Minors adopted a plan for the prevention and progressive elimination of work by children and young persons in Chile. It notes that the objectives of the plan are to: raise public awareness of the problem of child labour; collect information on child labour; amend the national legislation and draw up a national plan for monitoring child labour; develop a profile of the boys, girls and young persons used in the worst forms of child labour; and implement the plan. The Committee requests the Government to provide information on the implementation of the plan for the prevention and progressive elimination of work by children and young persons in Chile and on the results obtained with regard to the elimination of child labour.

Article 2, paragraph 1. 1. Scope of application. Under the terms of section 1, the Labour Code and its subsidiary legislation apply 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 that 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 secured for children exercising an economic activity on their own account.

2. Minimum age for admission to employment or work. Domestic work. The Committee also notes that, under section 10 of Act No. 3654 of 1930 on compulsory primary education, persons who employ as domestic workers children who have not completed their compulsory schooling are obliged 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, under the terms of 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 6. Apprenticeship. The Committee notes that apprenticeship contracts are regulated by sections 78-87 of the Labour Code. Under 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 8. Artistic performances. The Committee notes that, under section 15(2) of the Labour Code, minors 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 provided for 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 for issuing permits and the conditions governing permits, particularly with regard to hours of work and conditions of employment or work, as well as the number and nature of the permits granted.