Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note of the Government’s report. It notes the detailed information sent in reply to its previous comments, particularly that regarding domestic work in families. The Committee also notes the explanations given by the Government concerning the comments made by the Trade Union Confederation of Workers’ Commissions (CC.OO).

Article 2 of the Convention. In the comments it has been making for a number of years, the Committee has referred to the absence of provisions establishing that minors must undergo a medical examination for fitness for employment before being employed. In its previous comments, the Committee again asked the Government to examine the problems caused by this inconsistency between national legislation and practice and the Convention and to take the necessary steps to bring its legislation and practice into conformity with the Convention.

The Committee notes that, according to the Government, no new or amended laws or regulations concerning the application of the Convention have been adopted. It notes that, to the explanations provided in earlier reports, the Government adds that Article 2 of the Convention is applied inter alia by the provisions of section 37(3) of Royal Decree No. 39 of 17 January 1997 on occupational health services. The Committee observes, however, that this provision deals with high-level supervision and control of workers’ health by the occupational health services. It establishes that workers undergo, on the orders of the occupational health services and at the hands of a physician specializing in occupational medicine or a company doctor and a holder of an "ATS/DUE", a medical examination before recruitment (subsection b(1)) and further medical examinations in the course of employment (subsection b(3)). The medical examinations are conducted according to conditions laid down in section 22 of Act No. 31/1995 on the prevention of occupational risks. As the Committee has observed in previous comments, section 22(1) of that Act provides that the medical examination may be carried out only at the worker’s request or with the worker’s consent, except when such an examination is required in order to assess the effects of working conditions on the health of workers, or to establish whether the worker’s state of health may constitute a danger for him or her, for the other workers, or for other persons having a connection with the enterprise. The Committee therefore concludes that there is no express provision in section 37(3) of Royal Decree No. 39/1997, read in conjunction with section 22 of Act No. 31/1995, for a thorough medical examination of workers to be required before they are employed, as this Article of the Convention prescribes.

The Committee also notes that, according to the Government, section 13(2) of Legislative Decree No. 5 of 4 August 2000 issuing provisions on offences and penalties in the area of social protection includes among the most serious breaches of the law failure to respect provisions concerning protection of the occupational safety and health of minors. The Government adds that this provision is an integral part of the occupational health and standards system, the hub of which is Act No. 31/1995 on the prevention of occupational risks, which incorporates in the national legislation European Directive 94/33 of 22 June 1995 on the protection of young people at work. The Committee again points out, in this context, that section 27 of Act No. 31/1995 on risk prevention at work provides, in its first paragraph, that, before assigning minors under 18 years of age to a job, employers must carry out an appraisal of the posts to which they are to be assigned, focusing particularly on the specific risks to the safety, health and development of young people which may arise out of their lack of experience, their lack of knowledge or their lack of maturity. This means that the employer must take measures, on the basis of an assessment of the risks that the work involves for the young people who are to perform it, to protect their safety and health, taking account of the specific risks arising out of their lack of experience, their unawareness of hazards or their incomplete development. The Committee can only repeat what it has already pointed out in this connection: first, the measures to be taken under the relevant legislation must be adapted to the nature of the risks inherent in the work; secondly, the medical examination prior to employment specified in the Convention concerns the persons expressly referred to therein - namely children and young people under 18 years of age - the aim being to certify their fitness for a specific job, whereas the risk evaluation provided for in the abovementioned Act concerns the type of work to be performed and is therefore limited to the risks inherent in the work.

Consequently, the Committee is bound to point out that no provisions of the national legislation cited by the Government provide expressly for a compulsory thorough medical examination prior to employment, in order to give effect to Article 2 of the Convention. Recalling once again that it is of vital importance that all minors should undergo a medical examination for admission to employment, the Committee trusts that the necessary measures will be duly taken as soon as possible to bring the law and practice into line with the requirements of this Articleof the Convention. The Committee hopes that the Government’s next report will contain information on progress made in this respect.

With regard to the CC.OO’s comments on the absence of provisions establishing that minors from 16 to 18 years of age must undergo a thorough medical examination prior to employment, the Committee notes that the Government refers, mutatis mutandis, to the explanations mentioned above. The Committee is therefore bound to note once again that there are no provisions requiring young persons under 18 years of age to undergo a thorough medical examination before being admitted to employment. It therefore asks the Government to take the necessary steps to bring its legislation into line with the provisions of Article 2, paragraph 1, of the Convention.