Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Minimum Age Convention, 1973 (No. 138) - Brazil (Ratification: 2001)

Other comments on C138

Observation

Direct Request

2015
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2004

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Article 2(1) of the Convention. Scope of application. The Committee previously noted that the Government had declared the minimum age for admission to employment or work of 16 years, as established in article 7, paragraph XXXIII, of the Federal Constitution and section 403 of the Consolidated Labour Act. However, the Committee also noted that, under section 402 of the Consolidated Labour Act, children who have not yet reached the minimum age for admission to employment or work may work in workshops in which only the child’s family members are employed and which are managed by their father, mother or guardian, with the exception of night work (section 404) and hazardous work (section 405). The Government indicated that section 402 of the Consolidated Labour Act excludes from its scope, work by children and young persons in family enterprises, i.e. in economic activities for the purpose of family subsistence and maintenance. Nonetheless, in response to the Committee’s request to ensure the protection provided for by the Convention to all children, the Government indicated that the functions of the Special Mobile Inspection Group (GEFM) had been modified and the labour inspectors’ scope of action extended to combating child labour. The aim of this reinforcement of the labour inspection system was to remove children and young persons from illegal work, in both the formal and informal economies, and to orientate them towards a social protection network. The Government further indicated that an information system on locations where child labour occurs (SITI) had been set up. The Committee requested the Government to indicate the number of working children under 16 years of age who work on their own account or in the informal economy, who had been withdrawn from their activities and to indicate whether the reinforcement of the labour inspection services enables inspectors to carry out inspections in family enterprises.

The Committee notes the Government’s statement that work within families is not, strictly speaking, subject to labour inspection. The Government also indicates that the SITI system does not record a child’s particular employment status (that is, whether the child is self-employed or not), so it is not possible to provide information on the number of children without an employment contract removed from work. Nonetheless, the Committee observes that the Government’s report provides detailed statistics on the employment status of working children, indicating that there were approximately 167,975 self-employed children in 2007 and 130,505 self-employed children in 2008. Regarding children performing unpaid work, the Committee notes the information in the Government’s report that 47.3 per cent of children between the ages of 5 and 17 do not receive any remuneration. The Government’s report indicates that the majority of children between the ages of 5 and 15 who were performing unpaid work worked in family businesses. The Government further indicates that only 579,299 children between the ages of 5 and 15 were employees. Noting that the majority of children working under the minimum age are working either on a self-employed basis or on an unpaid basis in a family enterprise, the Committee encourages the Government to pursue its efforts to ensure that children working outside of an employment relationship, such as those who work on their own account or in the informal economy, benefit from the protection provided for in the Convention. The Committee requests the Government to continue to provide information on the measures taken in this regard and on the results achieved.

Article 3(1) and (3). Minimum age for admission to hazardous types of work. The Committee previously noted the adoption of Decree No. 6.481 which approves a detailed list of over 90 activities in which it is prohibited to employ young persons under 18 years of age. However, the Committee noted that, pursuant to section 2(1) of Decree No. 6.481, the prohibition on employing young persons under 18 years of age in hazardous work may be lifted under specific conditions. Section 2(1)(1) of Decree No. 6.481 states it is possible to employ a minor aged 16 or over with the authorization of the Ministry of Labour and Employment, further to consultation with the employers’ and workers’ organizations concerned, provided that the health, safety and morals of the young persons are fully guaranteed. Pursuant to section 2(1)(2) of Decree No. 6.481, this authorization must be accompanied by a detailed technical notice, signed by a professional person legally authorized to act in occupational safety and health matters certifying that the young persons will not be exposed to risks which could endanger their health, safety or morals. This technical notice must be filed with the decentralized unit of the Ministry of Labour and Employment of the district in which the work will take place.

The Committee notes the Government’s indication that the filing of the technical notice with the decentralized unit of the Ministry of Labour and Employment is important as it allows, should there be disagreement as to the effective protection of the young persons involved in a activity, the decision to be reviewed by the labour auditor–inspector, who will then take the appropriate legal measures. The Committee once again observes that section 2(1) of Decree No. 6.481 does not indicate whether young persons over 16 years of age must have received adequate specific instruction or vocational training in the relevant branch of activity to receive authorization of the Ministry of Labour and Employment, as specified in Article 3(3) of the Convention. The Committee once again reminds the Government that, under Article 3(3) of the Convention, young persons over 16 years of age may be authorized to perform dangerous work provided that: (a) their health and safety are fully protected; and (b) they have received adequate specific instruction or vocational training in the relevant branch of activity. The Committee therefore requests the Government to indicate if specific instruction or vocational training is considered in the technical notice by the professional person legally authorized to act in occupational safety and health matters, or in the subsequent review of this notice by the labour auditor inspector, in conformity with Article 3(3) of the Convention.

Lastly, the Committee notes the information in the Government’s report that the subcommittee on bringing the national legislation into conformity with Conventions Nos 138 and 182 commissioned a survey to identify possible gaps in Brazilian legislation on child labour and the protection of young workers with a view to harmonizing legislation with Conventions Nos 138 and 182. The Government indicates that this survey was completed and presented to the subcommittee, which is currently considering options for follow-up steps. The Government indicates that this may include a new bill for submission to National Congress. The Committee expresses the firm hope that any legislation drafted as a result of this survey will take into consideration the Committee’s comments on discrepancies between national legislation and the Convention. It requests the Government to continue to supply information on all progress made in this respect.