Individual Case (CAS) - Discussion: 2002, Publication: 90th ILC session (2002)

A Government representative recalled the main elements of the observation of the Committee of Experts and provided a chronological description of the legislative amendments to section 122 of the Labour Code. He agreed with the Committee of Experts that there had in practice been a regression in the legislation as a result of the amendment in 1995, during the first civil Government, of section 122 of the Labour Code, which reduced from 12 to ten hours the rest period for young persons between 15 and 18 years of age. He indicated that it was necessary to take into account the lack of legislative experience of the Parliament following 35 years of military dictatorship. He indicated that, under the terms of section 257 of Act No. 1680 of 2001, issuing the Young Persons Code, section 122 above was repealed. He nevertheless regretted that section 58 of Act No. 1680, despite the participation of many sectors of society in its preparation, once again introduced the content of the repealed section 122. He could find no justification for this amendment.

He indicated that the Young Persons Code, which was one of the many legislative reforms undertaken since the advent of democracy, had been issued under the Constitution and established a supervisory system for the protection of children which was not yet in operation. He regretted that the Secretary for Children and Young Persons had not been able to be present during the discussion. He emphasized that he accepted the comments of the Committee of Experts and, as it had requested, the Government would provide a detailed report on the application of Conventions Nos. 79 and 90. He also gave a formal undertaking to take the necessary measures immediately to achieve the desired legislative reform in consultation with the social partners. He informed the Committee that the Executive wished to include the question of the ratification of the Minimum Age Convention, 1973 (No. 138), on the agenda of the Parliament. Finally, he reaffirmed the will of his Government to overcome legislative procedural issues and to participate in the campaign for the elimination of child labour.

The Employer members thanked the Government representative for the information provided, although they noted that some of the information was not directly relevant to the case. The Conventions in question dealt with the limitation of night work performed by young persons and the prohibition on children performing night work. They recalled that the national legislation had been amended in 1974 to bring it into conformity with the Conventions. In the 1976 report of the Committee of Experts, this had therefore been identified as a case of progress. However, in 1995 the legislation had once again been amended and no longer gave effect to the Conventions. The amendment had reduced to ten hours the period of consecutive hours of rest required for young persons engaged in night work, instead of the 12 hours envisaged by the Conventions. Moreover, the 1995 amendment was not in compliance with the country's other labour laws, which was however a matter relating to the internal affairs of the State.

As Paraguay had ratified the Worst Forms of Child Labour Convention, 1999 (No. 182), this regression in its legislation was even more regrettable. In view of the backward step taken in the legislation to protect young persons, the Employer members wondered whether the ratification of Convention No. 182 was merely a symbolic act. In this respect, they emphasized the importance of only ratifying a Convention when the State was able to implement its provisions.

The Employer members noted that, after some hesitation, the Government representative had recognized the legislative problem, for which no explanation had been advanced. With regard to the statement by the Government representative that the respective provisions of the legislation would be amended in future to comply with the Conventions, the Employer members wondered whether specific deadlines had been set by the Government for the adoption of the amendment.

Finally, the Employer members called upon the Office to ensure that the same laws were always referred to using the same terminology in the Committee of Experts' various comments to facilitate comprehension of the report.

The Worker members thanked the Government representative for the information provided and recalled that this was the first occasion on which the Committee examined a case concerning the night work of children and young persons in Paraguay. The current situation in the country was very serious, as indicated by addition of a footnote to the report of the Committee of Experts.

In 1976, the Committee of Experts had noted with satisfaction the amendment of section 122 to give effect to Articles 2 and 3 of the two Conventions. However, the Government had decided to amend this section once again, thereby reducing to ten hours the period during which young persons between the ages of 15 and 18 could not be employed at night, whereas the Conventions required a period of 12 hours. Furthermore, section 122 did not provide for a rest period of 14 hours for children under the age of 15 years. Section 189 of the Young Persons Code prohibited young persons of 18 years of age from performing night work between 8 p.m. and 5 a.m., namely for a period of nine hours. This was in contradiction with section 122 of the Labour Code, which set this period at ten hours, and with Articles 2 and 3 of the Conventions, which require a rest period of 12 consecutive hours.

The employment of children throughout the world was giving rise to great concern. This backward step in the legislation for the protection of children, at a time when night work was included in the definition of dangerous types of work in the Worst Forms of Child Labour Recommendation, 1999 (No. 190), was severely reprehensible. It was even more regrettable in view of the fact that Paraguay had ratified the Worst Forms of Child Labour Convention, 1999 (No. 182), in March 2001. Night work was harmful for everyone, and particularly for young workers. If night work was permitted, restrictions needed to be applied.

The lack of compliance with the Conventions was not confined to the legislation, but also affected everyday life. The country was currently experiencing an economic crisis, had over 1 million unemployed workers, was suffering from corruption and had a large external debt. A large number of families lived off the income of their children, who worked day and night in supermarkets or as street vendors. It was also important for these children to have the right to education, health and a life of dignity. The Government of Paraguay needed to take the necessary measures to bring its legislation into conformity with the provisions of the Conventions by amending section 122 of the Labour Code and section 189 of the Young Persons Code. These amendments would only constitute a first step and could only be effective if they were applied in practice. Effective supervision needed to be established to protect young persons and labour inspection should play an important role in this respect. Furthermore, those guilty of these practices had to be punished.

The Worker member of Paraguay indicated that there were numerous cases of violations of Conventions Nos. 79 and 90 in Paraguay since the Labour Code and the Young Persons Code, adopted after their ratification, contained provisions contrary to these Conventions. Thousands of children worked in supermarkets, national and multinational enterprises, while their parents had no work. In practice, young persons were employed and exploited. Furthermore, thousands of children, who could be described as children working in the informal sector, had been abandoned on the streets, which posed great danger for their physical and moral well-being. These boys and girls, without any protection, became involved in drug addiction, suffered sexual abuse and were victims of violence.

He expressed his serious concern at the failure to respect human rights and rights of children, who were often forced by the army to carry out mandatory military service, despite the fact that the prescribed age for military service was between 17 and 19 years. In many cases, children between 14 and 16 years of age had been forced to work on oil pipelines, in other areas of forced labour or in the private homes of military personnel. According to the complaint brought before the Human Rights Committee of the National Congress, a number of these children had died in military barracks handling arms without any safety measures, and threats had been made against their parents to prevent them from reporting these incidents. After 13 years of democracy, he called for the strengthening of labour legislation and compliance with ILO Conventions, in particular Conventions Nos. 87, 98, 29, 138 and 169, which were systematically violated.

He indicated that the labour situation in his country was deteriorating every day. As an example of this, he indicated that during a demonstration for the protection of the public property of strategic state enterprises, such as telecommunications, energy and water, among others, the workers had been the victims of violence by the authorities, which had resulted in the death of one rural worker, several injuries and over 200 detentions. He said that the Government had been responsible for this action and expressed the firm hope that the persons responsible would be duly punished.

The Worker member of Guatemala said that minors were the principal victims of the socio-economic model imposed upon developing countries and meekly accepted by many governments. He endorsed the observation of the Committee of Experts, particularly as regards the inconsistency between the legislation of Paraguay, and especially section 122 of the Labour Code, with the Convention. He drew the Committee's attention to the fact that on 12 December 2001 Paraguay had denounced the Minimum Age (Non-Industrial Employment) Convention (Revised), 1937 (No. 60). He believed that the policy that was being pursued included the implicit premeditated intention to diminish the protection afforded to children, since non-industrial activities could now be performed by children under 15 years of age. He hoped that the Government would make the necessary amendments to bring its legislation into conformity with the provisions of the Convention.

The Worker member of Brazil, in response to the explanations provided by the Government representative, emphasized first that in Paraguay the regulation of work by children and young persons was below protection established by the Convention, and was therefore in violation of the Convention. Secondly, Paraguay had recently ratified Convention No. 182, which was one of the fundamental Conventions. Unfortunately, at the same time, it had denounced the Minimum Age (Non-Industrial Employment) Convention (Revised), 1937 (No. 60), which was a retrograde step. While recognizing that Paraguay might have reasons for the denunciation of this Convention, he insisted that the campaign for the ratification of Convention No. 182 did not imply that other relevant Conventions should cease to be applied.

The Worker member of Argentina, indicated that Paraguay, in the same way as other Latin American and Caribbean countries, was going through an economic process characterized by a deterioration in social conditions, and particularly a reduction in the protection of children, which was not only in violation of the provisions of Conventions Nos. 79 and 90, but also Conventions Nos. 138 and 182. Children were forced to perform work in breach of the principles established in those Conventions. The neglect of minors had become common in Latin American cities, where they were condemned to exclusion and marginalization. The violation of ratified Conventions and the indifference of governments to the worst forms of child labour made it necessary to condemn those who did not guarantee compliance with fundamental principles. It was unacceptable that, because of the economic crisis, children had been transformed into a source of support for their families, while their parents were unemployed. In Paraguay, as well as in the other countries, delinquency, alcoholism and child prostitution were on the increase. Everybody needed to make a commitment to guarantee children a future without marginalization, with education, health and leisure. Governments were in the frontline of those who had to take this responsibility.

The Government representative once again endorsed the observation by the Committee of Experts and expressed his total agreement with it. He added that section 122 had been repealed by section 257 of Act No. 1680. Nevertheless, he admitted the inconsistency of the legislation, since section 58 of the above Act, which issued the Young Persons Code, took up the terms of section 122 which had been repealed. He reaffirmed the intention of his Government to take the necessary measures to bring the legislation into conformity with Conventions Nos. 79 and 90.

The Employer members concluded that the case was very clear and that all the parties, including the Government, agreed upon the need to amend the legislation to bring it once again into conformity with the Conventions. They welcomed the Government's indication that it was prepared to do this in cooperation with the social partners. They therefore called upon the Government to take the appropriate legislative measures in the near future and to report to the ILO in detail on the progress achieved.

The Worker members took note of the legislative amendments announced by the Government representative. Unfortunately, the report of the Committee of Experts did not refer to them and it was therefore impossible to verify the current situation. The various interventions indicated that the current legislation was not in conformity with the Conventions. It was very regrettable that the Government of Paraguay had made a step backward in modifying section 122 of the Labour Code at a time when night work was considered to be a dangerous form of work under Recommendation No. 190, which supplemented Convention No. 182, which had been ratified by Paraguay. The Government should take measures as quickly as possible to amend its legislation, and particularly section 122 of the Labour Code and section 189 of the Young Persons Code. The Government should also envisage the establishment of effective supervision to protect young persons and to impose appropriate sanctions upon offenders. The Worker members took note of the Government's intention to ratify Convention No. 138 and called for this ratification to be made in the near future.

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

The Committee takes note of the Government’s report.

Article 3 of the Convention. Period during which it is forbidden to work at night. In its previous comments, the Committee noted with satisfaction that under section 2 of Decree No. 4951 of 22 March 2005, night work between 7 p.m. and 7 a.m., i.e. a period of 12 hours, is classified as dangerous and that, pursuant to section 3 of the Decree, it is prohibited for children under 18 years of age. It nonetheless noted that section 58 of the Children’s and Young Persons’ Code prohibits night work for children aged 14 to 18 years for a period of ten hours including the interval between 8 p.m. and 6 a.m. In order to avoid any ambiguity in the law, the Committee deemed it advisable to align section 58 with the Children’s and Young Persons’ Code with Decree No. 4951 of 22 March 2005 and the Convention, by introducing an amendment to increase to 12 hours the period during which young persons must not work at night.

While noting the information from the Government that the exceptions allowed by this provision of the Convention have not been used, the Committee again expresses the view that it would be advisable to align section 58 of the Children’s and Young Persons’ Code with Decree No. 4951 of 22 March 2005, the Convention and practice. It requests the Government to take the necessary steps to amend section 58 of the Children’s and Young Persons Code and to establish that the period during which children may not work at night must be 12 hours.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report. It notes with interest the adoption of Act No. 1680 of 30 May 2001 incorporating the Children’s and Young Persons’ Code (hereafter Children’s and Young Persons’ Code) and Decree No. 4951 of 22 March 2005 setting out a list of 19 types of dangerous work prohibited for children under 18 years of age (hereafter Decree No. 4951 of 22 March 2005).

Article 3 of the Convention. Period during which it is forbidden to work at night. In its previous comments, the Committee noted that under section 122 of Act No. 213 issuing the Labour Code (hereafter Labour Code), as amended by Act No. 496 of 22 August 1995, young persons between 15 and 18 years of age shall not be employed at night for a period of ten hours including the interval between 8 p.m. and 6 a.m. The Committee also noted that section 189 of Act
No. 903 of 18 December 1981 issuing the Young Persons’ Code (hereafter Young Persons’ Code) prohibits young persons under 18 years of age from performing work at night between 8 p.m. and 5 a.m., namely a period of nine hours. The Committee noted at that time that these two provisions were not in compliance with Article 3 of the Convention which prohibits night work for young people between 14 and 18 years of age for a period of 12 consecutive hours, including the interval between 10 p.m. to 6 a.m. The Committee notes with interest that
section 257 of the Children’s and Young Persons’ Code of 2001 repeals these two provisions.

In addition, the Committee notes with satisfaction that, under section 2 of Decree No. 4951 of 22 March 2005, night work during the period between 7 p.m. and 7 a.m. is classed as dangerous and, under section 3 of the Decree, is prohibited for children under 18 years of age. The Committee notes, however, that section 58 of the Children’s and Young Persons’ Code regulates night work for young persons by prohibiting such work for persons aged between 14 and
18 years during a period of ten hours, including the interval between 8 p.m. and
6 a.m. Hence, in order to avoid any legal ambiguity, the Committee deems it desirable to align section 58 of the Children’s and Young Persons’ Code so as to bring it into conformity with Decree No. 4951 of 22 March 2005 and with the Convention, by modifying the period during which young persons must not work at night to increase it from ten to 12 hours and requests the Government to take the necessary measures to this end.

The Committee refers also to the comments made on application of Convention No. 90.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation, which read as follows:

In its previous observation, the Committee had noted the amendment of section 122 of the Labour Code by Act No. 496 of 22 August 1995. Under the provisions of new section 122, young persons between 15 and 18 years of age shall not be employed at night for a period of ten hours between 8 p.m. and 6 a.m. The amendment has reduced to ten hours the 12 hours required by the Convention which was laid down in section 122 of the Code before it was amended by Act No. 496 of 22 August 1995. In addition, the new provisions of section 122 do not stipulate an interval of 14 hours for young persons under 15 years of age. The Committee had also noted that section 189 of the Young Persons’ Code (Act No. 903/81) prohibits young persons under 18 years of age from carrying out work at night between 8 p.m. and 5 a.m., namely, for a period of nine hours. As well as being in contradiction with national legislation which lays down ten hours (section 122 of the Labour Code), it is also in contradiction with Article 3 of the Convention which lays down an interval of 12 consecutive hours.

The Committee took note of the conclusions adopted in June 2002 by the Conference Committee on the Application of Standards, in which the Conference Committee noted with concern the reduction in the protection afforded to children in relation to the restriction on night work. It also noted that, before the Conference Committee, the Government representative endorsed the validity of the observation of the Committee of Experts, and expressed the will of its Government to make the necessary amendments to ensure the application of the Convention.

The Committee asked the Government to take the necessary measures to bring legislation into conformity with the provisions of the Convention by amending sections 122 of the Labour Code and 189 of the Young Persons’ Code.

The Committee referred to its comments on the application of Convention No. 90.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

[The Government is asked to supply full particulars to the Conference at its 95th Session.]

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation, which read as follows:

In its previous observation, the Committee had noted the amendment of section 122 of the Labour Code by Act No. 496 of 22 August 1995. Under the provisions of new section 122, young persons between 15 and 18 years of age shall not be employed at night for a period of ten hours between 8 p.m. and 6 a.m. The amendment has reduced to ten hours the 12 hours required by the Convention which was laid down in section 122 of the Code before it was amended by Act No. 496 of 22 August 1995. In addition, the new provisions of section 122 do not stipulate an interval of 14 hours for young persons under 15 years of age. The Committee had also noted that section 189 of the Young Persons’ Code (Act No. 903/81) prohibits young persons under 18 years of age from carrying out work at night between 8 p.m. and 5 a.m., namely, for a period of nine hours. As well as being in contradiction with national legislation which lays down ten hours (section 122 of the Labour Code), it is also in contradiction with Article 3 of the Convention which lays down an interval of 12 consecutive hours.

The Committee took note of the conclusions adopted in June 2002 by the Conference Committee on the Application of Standards, in which the Conference Committee noted with concern the reduction in the protection afforded to children in relation to the restriction on night work. It also noted that, before the Conference Committee, the Government representative endorsed the validity of the observation of the Committee of Experts, and expressed the will of its Government to make the necessary amendments to ensure the application of the Convention.

The Committee had hoped that the Government would take the necessary measures to bring legislation into conformity with the provisions of the Convention by amending sections 122 of the Labour Code and 189 of the Young Persons’ Code.

The Committee referred to its comments on the application of Convention No. 90.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

In its previous observation, the Committee had noted the amendment of section 122 of the Labour Code by Act No. 496 of 22 August 1995. Under the provisions of new section 122, young persons between 15 and 18 years of age shall not be employed at night for a period of ten hours between 8 p.m. and 6 a.m. The amendment has reduced to ten hours the 12 hours required by the Convention which was laid down in section 122 of the Code before it was amended by Act No. 496 of 22 August 1995. In addition, the new provisions of section 122 do not stipulate an interval of 14 hours for young persons under 15 years of age. The Committee had also noted that section 189 of the Young Persons’ Code (Act No. 903/81) prohibits young persons under 18 years of age from carrying out work at night between 8 p.m. and 5 a.m., namely, for a period of nine hours. As well as being in contradiction with national legislation which lays down ten hours (section 122 of the Labour Code), it is also in contradiction with Article 3 of the Convention which lays down an interval of 12 consecutive hours.

The Committee took note of the conclusions adopted in June 2002 by the Conference Committee on the Application of Standards, in which the Conference Committee noted with concern the reduction in the protection afforded to children in relation to the restriction on night work. It also noted that, before the Conference Committee, the Government representative endorsed the validity of the observation of the Committee of Experts, and expressed the will of its Government to make the necessary amendments to ensure the application of the Convention.

The Committee had hoped that the Government would take the necessary measures to bring legislation into conformity with the provisions of the Convention by amending sections 122 of the Labour Code and 189 of the Young Persons’ Code.

The Committee referred to its comments on the application of Convention No. 90.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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

The Committee notes with regret that the Government has not communicated the requested report concerning its earlier comment.

In its previous observation, the Committee noted the amendment of section 122 of the Labour Code by Act No. 496 of 22 August 1995. Under the provisions of new section 122, young persons between 15 and 18 years of age shall not be employed at night for a period of ten hours between 8 p.m. and 6 a.m. The amendment has reduced to ten hours the 12 hours required by the Convention which was laid down in section 122 of the Code before it was amended by Act No. 496 of 22 August 1995. In addition, the new provisions of section 122 do not stipulate an interval of 14 hours for young persons under 15 years of age. The Committee also noted that section 189 of the Young Persons’ Code (Act No. 903/81) prohibits young persons under 18 years of age from carrying out work at night between 8 p.m. and 5 a.m., namely, for a period of nine hours. As well as being in contradiction with national legislation which lays down ten hours (section 122 of the Labour Code), it is also in contradiction with Article 3 of the Convention which lays down an interval of 12 consecutive hours.

The Committee takes note of the conclusions adopted in June 2002 by the Conference Committee on the Application of Standards, in which the Conference Committee noted with concern the reduction in the protection afforded to children in relation to the restriction on night work. It also noted that, before the Conference Committee, the Government representative endorsed the validity of the observation of the Committee of Experts, and expressed the will of its Government to make the necessary amendments to ensure the application of the Convention.

The Committee hopes that the Government will take the necessary measures to bring legislation into conformity with the provisions of the Convention by amending sections 122 of the Labour Code and 189 of the Young Persons’ Code.

The Committee refers to its comments on the application of Convention No. 90.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the various amendments to section 122 of the Labour Code in relation to the prohibition of night work of young persons.

In 1976 the Committee noted with satisfaction that section 122 of the Labour Code had been amended by Act No. 506 of 1974 so as to comply with the provisions of Articles 2 and 3 of the Convention. Section 122 (amended) provided that young persons under 18 years of age would not be employed at night during an interval of 12 consecutive hours which must include the period between 10 p.m. and 5 a.m. For young persons under the age of 16 years, the period of prohibition of night work should include the interval between 10 p.m. and 6 a.m. Under the same provision, young persons of under 15 years of age could not be employed at night for a period of at least 14 consecutive hours which included the interval between 8 p.m. and 8 a.m. The same provision was included in the new Labour Code of 1993 (Act No. 213/93). Section 122 gave effect to Articles 2 and 3 of the Convention.

The Committee regrets to note the amendment of section 122 of the Labour Code by Act No. 496 of 22 August 1995. Under the provisions of new section 122, young persons between 15 and 18 years of age shall not be employed at night for a period of ten hours included between 8 p.m. and 6 a.m. The amendment has reduced to ten hours the 12 hours required by the Convention which was laid down in section 122 of the Code before it was amended by Act No. 496 of 22 August 1995. In addition, the new provisions of section 122 do not stipulate an interval of 14 hours for young persons under 15 years of age. The Committee also notes that section 189 of the Young Persons’ Code (Act No. 903/81) prohibits young persons under 18 years of age from carrying out work at night between 8 p.m. and 5 a.m., namely, for a period of nine hours. As well as being in contradiction with national legislation which lays down ten hours (section 122 of the Labour Code), it is also in contradiction with Article 3 of the Convention which lays down an interval of 12 consecutive hours.

The Committee notes the backward step in legislation on protection of young persons at a time when night work has been included in the concept of hazardous work in the Worst Forms of Child Labour Recommendation, 1999 (No. 190). Immediate action for its eradication is needed taking into account the ratification by Paraguay of the Worst Forms of Child Labour Convention, 1999 (No. 182), in March 2001.

The Committee hopes that the Government will take the necessary measures to bring legislation into conformity with the provisions of the Convention by amending sections 122 of the Labour Code and 189 of the Young Persons’ Code.

The Committee refers to its comments on the application of Convention No. 90.

[The Government is asked to supply full particulars to the Conference at its 90th Session and to report in detail in 2002.]