Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information supplied by the Government in its report. It also notes the comments made by the Trade Union Federation of Workers' Commissions (CC.OO).

1. Article 2 of the Convention. In its previous comments, the Committee noted that a number of provisions of the national legislation had fallen into abeyance, that there is no provision explicitly establishing the obligation of a thorough medical examination for fitness for work for the admission to employment of young persons, and it requested the Government to examine once again the problems raised in law and practice in the light of the Convention and to take the necessary measures to bring them into conformity with the provisions of this instrument.

In its reply, the Government reiterates in particular that, from the date of its publication, the Convention forms part of national legal provisions, which constitutes a legislative basis for the obligations contained in the instrument. It also notes that collective agreements have force of law, in conformity with Article 37(1) of the national Constitution and regulated in Title III of the Workers' Charter. Act No. 8/88 of 7 April 1988, respecting offences against the social order, and the related sanctions, gives legal guarantees for the application of such agreements, both in respect of petitions for their compliance before the bodies with jurisdiction in social matters, and of requiring the supervision of conformity with the terms and conditions of employment agreed therein. Finally, the Government points out that most of the types of employment covered by the Convention are prohibited for young persons under 18 years of age, in accordance with the Decree of 26 July 1957.

The Committee notes that Act No. 31/1995 on Prevention of Occupational Risks provides that, prior to the admission to employment of persons under 18 years of age, employers have to undertake an evaluation of the jobs in which they are to be engaged; this evaluation has to take into account, in particular, the specific risks for the safety, health and development of young persons which may arise out of their lack of experience, lack of awareness and incomplete development. This Act also stipulates that health supervision may only be carried out when requested by the worker, or when the worker gives consent, although an exception to this voluntary nature of health supervision will be made in cases in which such examinations are essential to evaluate the impact of conditions of work on the health of workers, or to verify whether the state of health of the worker may constitute a danger for the worker, for other workers or for other persons in relation with the enterprise.

The Committee notes that this Act does not provide explicitly for the obligation to carry out a thorough medical examination of the fitness for employment of young persons, which is necessary to give full effect to paragraph 1 of this Article of the Convention. The Committee hopes that necessary measures will be taken to bring the legislation and practice into conformity with the Convention.

2. Article 1, paragraph 1. In its report for the period ending 30 June 1991, the Government stated that young persons who are not engaged on account of an employer, including those who, without having the status of employees, are engaged in activities in family enterprises, are excluded from the scope of the provisions respecting medical examinations. The Committee hopes that in the final stage of the formulation of the draft legislation for the prevention of occupational risks, the Government will take the necessary measures to ensure that the obligation to carry out a medical examination for fitness for employment will be extended to young persons working in industrial family enterprises.

3. The Committee noted the observations made by the CC.OO which have been transmitted to the Government, in which the CC.OO alleges that the national legislation provides for no type of medical examination for the admission to employment of young persons under the age of majority, and that as a result no medical examination is usually carried out in practice for these workers. According to the CC.OO, Article 3, paragraphs 1 and 2, of the Convention are not applied in respect of the medical supervision of fitness for employment of young persons until they have attained the age of 18 years and the repetition of the medical examination each year. Article 3, paragraph 3, is not applied with respect to the determination in national laws or regulations of the special circumstances in which a medical re-examination shall be required in addition to the annual examination in order to ensure effective supervision in respect of the risks involved in the occupation. The Committee requests the Government to keep it informed with regard to all the matters raised in the above comments.