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Medical Examination of Young Persons (Non-Industrial Occupations) Convention, 1946 (No. 78) - Spain (Ratification: 1971)

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Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

In order to provide an overview of the issues concerning the application of the main Conventions on the medical examination of young persons, the Committee considers it appropriate to examine Conventions Nos 77 and 78 in a single comment.

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO), received on 20 August 2019. It also notes the observations of the General Union of Workers (UGT) contained in the Government’s report, and the Government’s reply to these observations.

Article 2 of Conventions Nos 77 and 78. Thorough medical examination for fitness for employment. In its previous comments, the Committee requested the Government to indicate how the evaluation of jobs and their inherent risks, provided for in section 27 of Act No. 31/1995 on the prevention of occupational risks (LPRL), ensures that minors of 16 to 18 years of age are recognized as fit for work before entering employment.

The Committee notes the observations of the CCOO that the job evaluation conducted under section 27 of the LPRL does not ensure that the minors involved are individually found to be fit for work before being admitted to employment, and that the national legislation is therefore not in conformity with Article 2 of the Conventions.

The Committee notes the Government’s indications that the employer is required to conduct a job evaluation before the admission to employment of minors of 16 to 18 years of age, paying particular attention to the specific risks of the post for the safety, health and development of young persons and taking into account their lack of experience, knowledge and maturity, in accordance with section 27 of the LPRL.

The Committee also notes the Government’s indications that, based on the evaluation results, the employer is required to plan preventive action and adopt any measures necessary to ensure the aptitude of the worker for the performance of their work, and to avoid or reduce the risks to which they may be exposed. These measures include: (i) the requirement to monitor workers’ health in light of the risks inherent to the job (in accordance with article 22 of the LPRL). Medical supervision is specific and regular and addresses the risks inherent to the job, and can be carried out before entering employment and may even be mandatory for the worker; (ii) the prohibition on employing workers who, by reason of their personal characteristics, may endanger themselves or others (in accordance with article 25 of the LPRL); (iii) with regard to minors of 16 to 18 years of age, the employer is required to evaluate the job before engaging such persons and to take appropriate measures to demonstrate their capacity to perform the tasks inherent to the post. These measures include health monitoring, which in turn includes, inter alia, medical examinations.

The Committee also notes the Government’s statement that although no specific provision of national law exists establishing the requirement for minors of 16 to 18 years of age to undergo a medical examination for fitness for employment before admission to employment, the national legislation in Spain adopts a more comprehensive and rigorous approach to this issue. It considers safety and health monitoring of workers to be a preventive measure, and requires this monitoring to be commensurate with the risks to which the workers are likely to be exposed. Effective compliance with national legislation may include, but is not limited to, medical examinations.

The Committee notes the Government’s indications that the national legislation is in conformity with European Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work. Similarly, article 96 of the Spanish Constitution provides that “validly concluded international treaties, once officially published in Spain, shall be part of national law” and section 1(5) of the Civil Code states that “legal norms contained in international treaties shall have no direct application in Spain until they have become part of the national legal system through their publication in full in the Official Gazette”. Therefore, the Government emphasizes that, taking into account that ILO Convention No. 77 of 1946 was ratified on 8 April 1971 and published in the Official Gazette (BOE) on 20 May 1971, it constitutes a direct source of law because it has been incorporated in part into current Spanish statutory law.

The Committee takes due note that the National Plan for Decent Work 2018–20, approved by the Government at the Council of Ministers held on 27 July 2018, has become the main tool for empowering the labour and social security inspectorate. This plan takes into account the vulnerability of minors of 16 to 18 years of age as potential victims of abuse in the workplace.

The Committee notes the statistics provided in the labour and social security inspection reports for 2016–18. These statistics cover the protection and health of minors, indicating the number of violations detected, the number of minor workers affected and the penalties imposed. The Committee notes that the number of labour inspections decreased between 2016 and 2018 (from 279,048 to 266,718) and that the number of detected violations concerning children of 16 to 18 years of age increased in industrial occupations (from five to 16) and decreased in non-industrial occupations (from 21 to six). There were no violations detected in industrial and non-industrial occupations concerning children under 16 years of age in 2016–18. The Commission requests the Government to provide information on the number of minors from 16 to 18 years of age who are recognized as fit for employment and have undergone a thorough medical examination prior to their recruitment, specifying, in each case, the employment concerned.

Article 6. Vocational guidance and physical and vocational rehabilitation. In its previous comments, the Commission requested the Government to indicate how, under Article 6 of Conventions Nos 77 and 78, the competent authorities provide for the vocational guidance and physical and vocational rehabilitation of children and young persons found by medical examinations to be unsuited to certain types of work, or to have physical disabilities or limitations.

The Committee notes the Government’s indication that Royal Legislative Decree No. 1/2013 of 29 November, which approves the consolidated text of the General Act on the rights of persons with disabilities and their social inclusion, defines comprehensive care as a set of processes that aim to enable persons with disabilities to acquire a maximum level of personal development and autonomy, to attain and maintain maximum independence, their physical, mental and social capacities and full participation and inclusion in all aspects of life, and to obtain suitable employment. Comprehensive care programmes can include physical rehabilitation and re-education and psychological care, treatment and counselling, in addition to education and vocational support. Government administrations ensure that adequate comprehensive care services are provided by various public bodies.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO), received 11 August 2017, and the Government’s report.

Article 2 of Conventions Nos 77 and 78. Thorough medical examination for fitness for employment. In its previous comments, the Committee pointed out that the national legislation contains no provisions requiring young persons under 18 years of age to undergo a thorough medical examination for fitness for work before employment. The Committee also observed that, while the national legislation prohibits workers under 18 years of age from being employed in hazardous work, it does allow minors from 16–18 years of age to be employed under certain conditions in industrial undertakings or non-industrial occupations, as provided for in Article 1 of the Conventions. The Government indicates that, for all activities which could be carried out by young persons under 18 years in industrial undertakings or non-industrial occupations which are not considered inappropriate, unhealthy or hazardous, the employer is required, under section 27 of Act No. 31/1995 on the prevention of occupational risks, before the admission to employment of minors under 18 years of age, to conduct an evaluation of the job in question, covering in particular specific risks for their safety, health and development, taking into account their lack of experience, knowledge and maturity. Under the same Act, on the basis of an assessment of the risks that the job involves for the young person employed therein, the employer must take measures to protect their safety and health, taking into account the specific risks that arise from their lack of experience or maturity regarding risk perception or the fact that they are still developing. These measures are provided for in section 22 of Act No. 31/1995, which requires regular monitoring of workers’ health in light of the risks inherent in their job. Section 25 of the same Act prohibits the employment of workers who, by reason of their personal characteristics, may cause danger to themselves or others. The Committee notes the Government’s indication that the national legislation, which is traditionally more comprehensive and imposes more stringent requirements for the protection of the safety and health of minors, is in conformity with European Council Directive 94/33/CE of 22 June 1994 on the protection of young people at work.

The Committee notes the observations of the CCOO that the job evaluation conducted under section 27 of Act No. 31/1995 on the prevention of occupational risks does not take into account the specific medical circumstances of the minor in question. The CCOO adds that the job evaluation does not ensure that the minors involved are individually found to be fit for work before being admitted to employment, and that the national legislation is therefore not in conformity with Article 2 of the Conventions.

The Committee notes the Government’s indication that, although no specific provision in national law exists establishing that minors from 16–18 years of age must undergo a thorough medical examination for fitness for employment before admission to employment, the national legislation adopts a more comprehensive and rigorous approach to this issue. The Committee notes that national legislation considers safety and health monitoring to be a preventive measure to ensure the safety and health of workers, and requires this monitoring to be commensurate with the risks to which the worker may be exposed. The Government indicates that effective compliance with national legislation may include, but is not limited to, medical examinations. The Committee therefore notes that while these measures may include a thorough medical examination prior to admission to work or employment, it does not seem to be a requirement. The Committee therefore asks the Government to indicate how the evaluation of jobs and their inherent risks established in section 27 of Act No. 31/1995 ensures that minors of 16–18 years of age are recognized as fit for work before entering employment, taking into account the fact that such fitness for work must be assessed through a thorough medical examination.

Article 6 of the Conventions. Vocational guidance and physical and vocational rehabilitation. The Committee notes the observation of the CCOO that the national legislation does not contain any measures to assist minors under 18 years of age to find a new vocation or for their physical and vocational rehabilitation following a medical examination which finds them to be unsuited to certain types of work or to have physical disabilities or limitations. The Committee requests the Government to indicate how, under Article 6 of Conventions Nos 77 and 78, the relevant authorities provide for the vocational guidance and physical and vocational rehabilitation of children and young persons found by medical examination to be unsuited to certain types of work or to have physical disabilities or limitations.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee refers to its comments made on the application of Convention No. 77.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee asks the Government to refer to the comments made in its observation on the application of Convention No. 77.

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

The Committee requests the Government to refer to the comments in its observation on the application of Convention No. 77.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee invites the Government to refer to the comments made in its observation on the application of Convention No. 77.

[The Government is requested to report in detail in 2002.]

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

1. Article 2 of the Convention. The Committee refers to the comments made in its observation on the application of Convention No. 77.

2. Article 7, paragraph 2. The Committee notes that the Government's report does not contain a reply to its previous comments. It hopes that in its next report the Government will supply full information on the following matters raised in its previous observation:

The Committee noted that, according to the comments presented by the General Workers' Union (UGT) and the Trade Union Confederation of Workers' Commissions (CC.OO), failure to comply with the requirement of a medical examination for admission to employment for young persons is much more serious in the case of young persons who are engaged on their own account in non-industrial work, employed in domestic service or engaged on their own account or the account of their parents in itinerant trading or any other occupation carried on in the streets, because the legislation has not determined the measures of identification for ensuring the application of a system of medical examination to such young persons.

The Committee noted the indications contained in the Government's report concerning the sanctions established in Act No. 8 of 1988 for non-observance of the provisions of laws, regulations or agreements which determine high or imminent risks for the personal safety or health of the workers; under the same Act, failure to carry out initial and periodic medical examinations for workers constitutes a serious violation.

The Committee observed that the general nature of such provisions does not preclude, but rather increases the need to establish explicitly by law, in conformity with the Convention, the requirement of a medical examination for fitness for employment of young people engaged in non-industrial occupations and to determine the measures of identification necessary for ensuring the application of the system to such young people.

The Committee hopes that the Government will take into consideration the matters which have been raised concerning the situation of national laws and practice with regard to the application of the Convention and that it will indicate the measures taken or envisaged to ensure that the Convention is observed.

3. The Committee notes the observations made by the Trade Union Federation of Workers' Commissions (CC.OO) which were transmitted to the Government, alleging that national legislation does not provide for any type of medical examination for access to employment of young persons and that as a result no type of medical examination of these workers is normally carried out in practice. According to the above Confederation, Article 3, paragraphs 1 and 2, of the Convention is not applied regarding medical supervision of the fitness for employment of young persons until they have attained the age of 18 years and the repetition of medical examinations every year; nor is Article 3, paragraph 3, applied with regard to the determination by national laws or regulations of the special circumstances in which a medical 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 provide information on all the matters raised.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

I. Article 2 of the Convention. The Committee refers the Government to the comments in its observation on the application of Convention No. 77.

Article 7, paragraph 2. The Committee noted that according to the comments presented by the General Workers' Union (UGT) and the Trade Union Confederation of Workers' Commissions (CC.OO), failure to comply with the requirement of a medical examination for admission to employment for young persons is much more serious in the case of young persons who are engaged on their own account in non-industrial work, employed in domestic service or are engaged on their own account or the account of their parents in itinerant trading or in any other occupation carried on in the streets, because the legislation has not determined the measures of identification for ensuring the application of a system of medical examination to such young persons.

The Committee noted the indications contained in the Government's report concerning the sanctions established in Act No. 8 of 1988 for non-observance of provisions of laws, regulations or agreements which determine high or imminent risks for the personal safety or health of the workers; under the same Act, failure to carry out initial and periodic medical examinations for workers constitutes a serious violation.

The Committee observed that the general nature of such provisions does not preclude but rather increases the need to establish expressly by law, in conformity with the Convention, the requirement of a medical examination for fitness for employment of young people engaged in non-industrial occupations and to determine the measures of identification necessary for ensuring the application of the system to such young people.

The Committee hopes that the Government will take into consideration the matters that have been raised concerning the situation of national laws and practice with regard to the application of the Convention and that it will indicate the measures taken or envisaged to ensure that the Convention is observed.

II. The Committee notes the comments of the Trade Union Confederation of Workers' Commissions (CC.OO) of 21 October 1993 which have been supplied to the Government, which alleged once more that the Convention was not being applied at all. According to the organization referred to, the Government often raises in its defence the regulations on medical examination to prevent occupational diseases (p. e.g., section 191 of the consolidated text on social security and regulations for development), but these examinations apply only to undertakings that have a risk of occupational disease and are not applicable to the majority of sectors and undertakings as required by the Convention. The Committee requests the Government to supply information on all the points raised in the observation.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Article 2 of the Convention. The Committee refers the Government to the comments in its observation on the application of Convention No. 77.

Article 7, paragraph 2. The Committee notes that according to the comments presented by the General Workers' Union (UGT) and the Trade Union Confederation of Workers' Commissions (CC.OO), failure to comply with the requirement of a medical examination for admission to employment for young persons is much more serious in the case of young persons who are engaged on their own account in non-industrial work, employed in domestic service or are engaged on their own account or the account of their parents in itinerant trading or in any other occupation carried on in the streets, because the legislation has not determined the measures of identification for ensuring the application of a system of medical examination to such young persons.

The Committee notes the indications contained in the Government's report concerning the sanctions established in Act No. 8 of 1988 for non-observance of provisions of laws, regulations or agreements which determine high or imminent risks for the personal safety or health of the workers; under the same Act, failure to carry out initial and periodic medical examinations for workers constitutes a serious violation.

The Committee observes that the general nature of such provisions does not preclude but rather increases the need to establish expressly by law, in conformity with the Convention, the requirement of a medical examination for fitness for employment of young people engaged in non-industrial occupations and to determine the measures of identification necessary for ensuring the application of the system to such young people.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

1. The Committee notes the information supplied by the Government in its report. The Committee also notes that a draft Royal Decree is being prepared on the prevention of disease and the promotion of health education. The draft text sets out as minimum common objectives in the field of occupational health, the surveillance of the health of workers for the early detection of risk factors and deteriorations that may affect their personal health, surveillance of workers who are subject to special risks either due to their own physical condition (young persons under 18 years of age could be included here) and due to factors related to the working environment. The Committee trusts that the draft text will include the medical examination required by the Convention for young persons engaged on their own account in non-industrial occupations or employed in domestic service (Article 1, paragraphs 1 and 2, of the Convention), as well as measures of identification to ensure the application of the system of medical examination for fitness for employment to children or young persons engaged either on their own account or on account of their parents in itinerant trading or any other occupation carried on in the streets or in places to which the public have access (Article 7, paragraph 2(a)).

2. The Committee notes the comments made by the General Union of Workers and the Trade Union Confederation of Workers' Commissions (CC.OO) in which it is stated that the Convention lacks legal coverage in the country; that in practice a certificate is not required indicating that the young person has been passed by a qualified practitioner as being in a suitable condition to undertake the work to be performed; that the competent authority has not been designated for issuing the document proving the fitness of the young person for employment and setting out the conditions under which this employment shall be performed. The Committee would be grateful if the Government would make observations and give clarifications on these comments in its next report.

[The Government is asked to report in detail for the period ending 30 June 1991.]

Direct Request (CEACR) - adopted 1987, published 74th ILC session (1987)

The Committee notes with interest the provisions of Act No. 14 of 25 April 1986, issuing general regulations respecting all the measures needed to give effect to the right to health protection that is recognised in section 43 and other sections of the Constitution. The Government states in its report that regulations may be issued under section 21, paragraph 1(e) of the above Act fixing standards for the compulsory medical examination of young persons engaged in non-industrial activities.

The Committee trusts that the above regulations will be adopted and that they will include provisions for the medical examination specified in the Convention for children and young persons working on their own account in non-industrial work or employed in domestic service (Article 1, paragraphs 1 and 2, of the Convention). The Committee also hopes that measures of identification will be adopted in order to ensure the application of the system of medical examinations for fitness for employment to children and young persons engaged either on their own account or on account of their parents in itinerant trading or in any other occupation carried on in the streets or in places to which the public has access (Article 7, paragraph 2(a)). The Committee asks the Government to indicate in its report any progress made in this connection.