Solicitud directa (CEACR) - Adopción: 2004, Publicación: 93ª reunión CIT (2005)

Convenio sobre la edad mínima, 1973 (núm. 138) - Ecuador (Ratificación : 2000)

Article 2, paragraph 3, of the Convention. Age of completion of compulsory schooling. Further to its previous comments, the Committee notes the information sent by the Government to the effect that, under article 67 of the Constitution, public education is compulsory up to the basic level. According to section 37(2) of the Children’s and Young Persons’ Code, public education is compulsory up to the tenth year. According to the Government, no law sets an age of completion for compulsory schooling. However, since in Ecuador primary school begins when the child is 5 years of age, basic education ends when the child is 15. Yet the age specified by Ecuador for admission to employment is 14 years. The Committee is nonetheless of the view that compulsory schooling is one of the most effective means of combating child labour. If these two ages do not coincide, a number of problems may arise. For example, if the age of completion of compulsory schooling is higher than the minimum age for admission to work or employment, children required to attend school may also be legally competent to work and thus be tempted to abandon their studies (see ILO: Minimum age, General Survey of the reports relating to Convention No. 138 and Recommendation No. 146 concerning Minimum Age, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III, Part IV(B), ILC, 67th Session, Geneva, 1981, paragraph 140). The Committee notes the report Global Child Labour Data Review: A Gender Perspective, published by the ILO in 2004. According to the statistical data in this report, the proportion of boys and girls aged from 10 to 14 years who only study is 57.4 per cent and the proportion of those who work and study is 29.7 per cent. Moreover, 39.1 per cent of boys and girls 10 to 14 years of age are economically active. The statistics also show that the school attendance rate decreases as age increases: 96.4 per cent for children of 11 years of age; 91.1 per cent for children of 12 years of age; 78.7 per cent for children of 13 years of age; and 72.4 per cent for children of 14 years of age. The Committee observes that according to these statistical data, the closer the children are to the minimum age of admission to employment or work (14 years), the lower the school attendance rate. The Committee requests the Government to indicate how compulsory schooling is effectively monitored in practice.

Article 2, paragraph 5. Reasons for specifying a minimum age of 14 years. With reference to its previous comments, the Committee notes from the information sent by the Government that 14 years was set as the minimum age on the basis of custom and in view of the situation in the country. The Committee requests the Government to continue to report, as required by Article 2, paragraph 5, of the Convention, on its decision to specify a minimum age of 14 years.

Article 3, paragraph 2. Determination of hazardous work. The Committee noted in its previous comments that, in order to enlarge on and update the list of jobs which were hazardous and prohibited for minors and children, two national consultations had been held, one with civil society and interested state bodies, including representative organizations of employers and workers, and the other with the indigenous peoples of Ecuador. Following the consultations, regulations were to be drawn up to update the list of jobs prohibited for children, pursuant to section 138 of the Labour Code. The Committee further noted that pursuant to section 87(2) of the Children’s and Young Persons’ Code of 2003, the National Council for Children and Young Persons was to determine the types of work which were dangerous, harmful or hazardous for young persons. The Committee notes the information supplied by the Government that the National Council for Children and Young Persons is currently preparing regulations on types of hazardous work that are prohibited for young people. The Committee hopes that the regulations will be adopted shortly and requests the Government to provide information on progress made in this regard.

Article 4. Exclusion from the application of the Convention of limited categories of employment or work. Domestic work. In its previous comments the Committee noted that, under section 134(1) of the Labour Code, the minimum age for admission to employment or work does not apply to domestic service. It pointed out that, nevertheless, by virtue of section 82 of the Children’s and Young Persons’ Code of 2003, the minimum age for admission to employment in all types of work applies to domestic service as well, and by virtue of section 91(1) of the Children’s and Young Persons’ Code, young persons carrying out an economic activity in domestic service have the same rights and safeguards as young workers in general. The Committee notes with interest that the Government does not intend to exclude economic activity by children in domestic service from the application of the Convention.

Article 6. 1. Apprenticeships. In its previous comments, the Committee noted 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 noted that, according to section 158(4) of the Labour Code, apprenticeship contracts for young persons aged from 12 to 17 years must contain a clause showing that the consent of the parents, ascendants or guardians, or else 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 on 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 provision of the Labour Code or the Children’s and Young Persons’ Code of 2003 establishes a specific age for admission to apprenticeship, the Committee inferred that a young person may carry out an apprenticeship from "the age of 12 years". In reply, the Government indicates that it has taken note of the Committee’s comments, without specifying the measures it intends to take. The Committee is therefore bound to remind the Government that Article 6 of the Convention allows work by persons "of at least 14 years of age" in undertakings as part of an apprenticeship course. The Committee again requests the Government to provide information on the measures taken or envisaged to ensure that no one under the age of 14 years carries out an apprenticeship. It also reiterates its request for information on the manner in which apprenticeship programmes are conducted in practice.

2. Vocational training. The Committee noted in its previous comments that, under section 92 of the Children’s and Young Persons’ Code of 2003, boys, girls and young people may engage in training activities in which work is an important component of the overall training. It noted that 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 people and must respect their moral and cultural values. It noted that in programmes that include training activities, priority must be given to teaching requirements. In the absence of a reply to these comments, the Committee again requests the Government to provide information on the types of employment or work which are treated as training activities under section 92 of the Children’s and Young Persons’ Code of 2003, including examples of such programmes.

Article 7. Light work. The Committee noted in its previous comments that under section 134(2) of the Labour Code, the juvenile court may authorize work by young persons aged from 12 to 14 years, provided that they have completed the minimum period of compulsory schooling required by law or that they attend evening courses or other basic education courses. The Committee further noted 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. It also noted that 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 accordance with the conditions laid down by the Code, the law or international instruments ratified by Ecuador. The Committee requested 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.

In reply, the Government indicates that it has noted the Committee’s comments but does not specify the measures it intends to take. The Committee is therefore bound to remind the Government that under Article 7, paragraphs 1 and 4, of the Convention, national laws or regulations may permit the employment or work of persons from 12 to 14 years of age on light work, provided that it: (a) is not likely to be harmful to their health or development; and (b) is not such as to prejudice their attendance at school, their participation in vocational guidance or training programmes approved by the competent authority or their capacity to benefit from the instruction received. It further reminds the Government that according to paragraph 3 of Article 7, the competent authority shall determine the light work which may be permitted and shall prescribe the number of hours during which, and the conditions in which, it may be undertaken. The Committee again observes that the provisions of the Labour Code and the 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 on light work of persons of 12 to 14 years of age. The Committee again requests the Government to take the necessary steps to ensure that no one under 12 years of age maybe allowed to 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. In its previous comments, the Committee noted that section 52(1) of the Children’s and Young Persons’ Code of 2003, prohibits participation by boys, girls and young persons (i.e. 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 inferred from that provision that boys, girls and young persons may participate in performances that are deemed suited to their age. In response, the Government indicates that boys, girls and young persons under 14 years of age may participate in artistic performances provided that they are suited to their age. It indicates, however, that the national legislation does not regulate the procedure for authorizing participation in artistic performances or set conditions for such authorization. This is left to the discretion of the persons who have the care of the boys, girls and young persons. While noting this information, the Committee 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: after consultation with the organizations’ of employers and workers concerned, it may grant permission in individual cases for such purposes as participation in artistic performances. 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 therefore requests the Government to take the necessary steps to ensure that boys, girls and young persons under 14 years of age who participate in artistic performances have the protection prescribed by Article 8 of the Convention.

Part V of the report form. Application of the Convention. In its previous comments, the Committee observed that 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 a million boys, girls and young persons. Of these, 63 per cent work 40 hours or more a week and some 390,000 young people in work are unable to study. It further noted that, according to a report published by ILO/IPEC South America in July 2001 (Studies and statistics-National diagnosis), Ecuador has made significant progress in standards to regulate the protection of children. It requested the Government to provide detailed information on the measures taken to improve the situation of these children and to send statistical data on the employment of children and young persons. The Committee notes the Government’s statement that Ecuador has always endeavoured to bring together all relevant players, at national and international level, with a view to eliminating child labour. The Committee also notes the statistical information sent by the Government which is drawn from the Survey on child labour in the urban and rural areas, published by the National Institute of Statistics and Censuses (INEC), in August 2001. According to the survey, 111,569 boys and girls aged from 5 to 9 years, and 343,554 aged from 10 to 14 years, are engaged in economic activity in Ecuador. Furthermore, agriculture is the sector with the most child workers aged from 5 to 14 years, with a total of 307,092.

The Committee again observes that, according to the abovementioned statistical data, practice is inconsistent with the legislation and the Convention. It notes in particular the Government’s indication that the child labour situation in Ecuador is worrying and that it will pursue its efforts to combat child labour. The Committee is likewise concerned by the situation of children under 14 compelled to work. The Committee strongly encourages the Government to step up efforts gradually to improve the situation, inter alia by continuing its cooperation with ILO/IPEC. In its previous comments the Committee noted that, according to the document published by IPEC South America (Time-Bound Programme), child labour exists in particular in the following sectors: gold mining, construction, banana, sugar and coffee plantations, and flower growing. The Committee requests the Government to continue to send statistics on the employment of children and young persons, extracts of the reports of the inspection services, particularly inspections in mining, construction, banana, sugar and coffee plantations, and flower growing, and to provide particulars of the number and nature of infringements reported.

In its previous comments, the Committee noted that some of the Labour Code provisions on child labour are inconsistent with the Children’s and Young Persons’ Code of 2003. The Committee notes that the Government confirms that there are disparities between some provisions of the Labour Code and the Children’s and Young Persons’ Code of 2003 and indicates that the inconsistency will be taken into account when the Labour Code is amended and the regulations of the Children’s and Young Persons’ Code are adopted. In order to avoid any uncertainty in law and ensure proper application of the Convention, the Committee is of the view that it is essential to harmonize the national legislation. It hopes that the Government will take the necessary steps in the near future to align the Labour Code and the Children’s and Young Persons’ Code and that in so doing it will take account of the above comments.