Solicitud directa (CEACR) - Adopción: 2004, Publicación: 93ª reunión CIT (2005)

The Committee takes note of the Government’s first and second reports. It requests the Government to supply further information on the following points.

Article 1 of the Convention. Measures taken to secure the prohibition and elimination of the worst forms of child labour. The Committee notes that the National Congress is currently discussing a number of Bills to tackle the sexual abuse of children and adolescents and their sexual exploitation through pornography. It requests the Government to continue to provide information on measures taken to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee also requests the Government to provide information on any developments in this regard.

Article 3. Worst forms of child labour. Clause (a). 1. Sale and trafficking of children. (i) For labour exploitation. The Committee notes under the terms of section 206 of the Penal Code, it is an offence to recruit workers through fraudulent means with a view to taking them abroad. It also notes that section 207(1) of the Penal Code makes it an offence to recruit workers, through fraudulent means or by receiving payments or benefits from the workers, or without ensuring their return to their original place of residence, with a view to taking them to another locality in the territory. Subsection (2) of section 207 of the Penal Code states that the penalty is increased if the victim is under the age of 18 years.

(ii) For sexual exploitation. The Committee notes that by virtue of section 231 of the Penal Code, it is an offence to promote or facilitate the entry into the country of women for prostitution or to promote or facilitate the transfer of women from the country for the purpose of engaging them in prostitution abroad. The Committee observes that section 231 of the Penal Code only deals with the international trafficking of women for prostitution and does not include other elements of trafficking, such as the international trafficking of boys, and internal trafficking of both girls and boys. However, the Committee notes that according to the information available at the Office, a draft Bill was proposed by the Labour Prosecution Service with the assistance of ILO Brazil and submitted to the National Congress’ Joint Parliamentary Commission of Inquiry on Violence and Sexual Exploitation against Children and Adolescents. The draft Bill would suggest that section 231 of the Penal Code should punish both international and internal trafficking. It would also suggest that the offence should cover both men and women, and boys and girls. The Committee requests the Government to provide information on any developments in this respect.

2. Debt bondage, serfdom and forced or compulsory labour. The Committee notes that by virtue of section 149 of the Penal Code, as amended by Act No. 10.803 of 11 December 2003, it is an offence to subject any person to conditions similar to slavery, whether by compelling that person to forced labour or whether by subjecting that person to degrading working conditions. The Committee also notes that under the terms of subsection (1) of section 149 those: (i) who keep the worker from leaving the workplace; and (ii) who watch over the worker or retain the worker’s documents or personal belongings with a view to keeping the worker from leaving the workplace is liable to a sanction. Moreover, it notes that by virtue of section 203 of the Penal Code, it is an offence to breach, by fraud or violence, rights embodied in labour legislation. Under subsection (1) of section 203, those who: (i) force or coerce somebody to use merchandise from a given establishment, resulting in a debt that makes it impossible for that person to leave service; and (ii) prevent an individual from ceasing to provide services of any type, through coercion or by withholding their personal or contractual documents, is liable to a sanction.

3. Compulsory recruitment of children for use in armed conflict. The Committee notes that by virtue of Article 143 of the Federal Constitution, military service is compulsory as set forth by law. Thus, under the terms of section 3 of Act No. 4.375 of 17 August 1964 (Military Service Act), the initial military service shall be done by Brazilians in the year during which they become 19 years old. According to section 5 of the Military Service Act, in times of peace, one’s military obligations begin on 1 January of the year when they become 18 years old. Moreover, subsection (2) of section 5 allows for voluntary military service to be carried out by persons over 17 years of age.

Clause (b). Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes that sections 240 and 241 of the Statute of the Child and Adolescent Act No. 8.069 of 13 July 1990, as amended by Act No. 10.764 of 12 November 2003, deal with child pornography. Section 240 states that it is an offence to produce or direct theatre productions, television plays or cinema films, photos or any other media utilizing a child (a person aged under 12 years - section 2) or adolescent (a person aged from 12 to 18 years - section 2) in scenes of explicit or pornographic sex. According to section 240(2), the penalty is increased if the offence is committed for commercial purposes. Furthermore, section 241 makes it an offence to present, produce, sell, supply, distribute or publish by any means of communication, including the Worldwide Web, photos or images containing pornography or scenes of explicit or pornographic sex involving a child or adolescent. Section 241(1) makes it an offence to procure, authorize or facilitate the participation of the child or adolescent in the pornographic productions. The penalty shall be increased if the offence is committed for commercial purposes.

Clause (c). Use, procuring or offering of a child for illicit activities. The Committee notes that the Anti-drugs Act No. 6.368 of 21 October 1976, deals with unlawful trafficking and the use of narcotics, criminalizing a number of acts. It also notes that section 18(3) states that the penalty will be increased if any of the offences involve minors (persons under 21 years of age), either as accomplices or as victims. According to the information available at the Office, the number of young persons involved in drug trafficking is increasing, and those involved in these activities are ever younger. The reason attributed to this phenomenon is the fact that using minors in the "business" keeps the costs lower than using adults in their place, e.g. for the payment of bail when they are arrested, as well as for the payment of tips to the police. The Committee requests the Government to provide information on the application of the legislation in practice.

Clause (d). 1. Hazardous work. The Committee notes that by virtue of article 7, paragraph XXXIII, of the Federal Constitution, night work, dangerous or unhealthy work is prohibited for children under the age of 18 years. It also notes that according to section 403 of the Consolidated Labour Act, as amended by Act No. 10.097 of 19 December 2000, a minor (a worker aged from 14 to 18 years - section 402) may not work in places harmful to the minor’s education, physical, mental, moral and social development and at times and in places which would prevent attendance at school. Moreover, section 404 of the Consolidated Labour Act lays down that children under 18 years are prohibited from night work, which is defined as working between 10 p.m. and 5 a.m. Finally, section 67 of the Statute of the Child and Adolescent, Act No. 8.069 of 13 July 1990, states that employees, apprentices, children in family employment, technical school students, trainees in a governmental or non-governmental agency are prohibited from carrying out the following work: (i) night work between 10 p.m. on one day and 5 a.m. on the following day; (ii) dangerous, unhealthy or heavy work; (iii) work in places prejudicial to their education and their physical, mental, moral and social development; and (iv) work performed at times and in places which would prevent them from attending school.

Article 4, paragraphs 1 and 3. Determination and revision of hazardous work. The Committee notes that by virtue of section 405 of the Consolidated Labour Act, minors are not permitted to work: (i) in dangerous or unhealthy locations or services as set out in the table approved for this purpose by the Labour Inspectorate; and (ii) in locations or services prejudicial to their morality. The Committee also notes the information provided by the Government that, upon ratification of Convention No. 182, it established a tripartite commission, within the Ministry of Labour and Employment, made up of representatives of the Federal Government, employers and workers, mandated to revise Decree No. 3.616 of 13 September 1941 (which enumerated activities prohibited to workers under the age of 18 years) and to draw up a new list of the prohibited hazardous work. Moreover, a specific technical group of individuals representing tobacco, cotton and citrus fruit cultivation was established to list the stages of the cultivation processes considered to be inappropriate for minors under 18 years of age. The Committee notes with interest that the Labour Inspectorate Order No. 20 of 13 September 2001, which was amended by the Labour Inspectorate Order No. 4 of 21 March 2002, provides for a detailed list of activities that constitute hazardous work. Under the terms of section 1 of the Labour Inspectorate Order No. 20, children under the age of 18 are prohibited from working in the activities listed in Annex 1.

Paragraph 2. Identification of hazardous work. The Committee notes that the Government has provided no information with regard to this paragraph. It draws the Government’s attention to Article 4, paragraph 2, of the Convention according to which the competent authority, after consultation with the organizations of employers and workers concerned, shall identify where the types of work determined as hazardous exist. The Committee requests the Government to provide information on the measures taken to identify where the types of hazardous work so determined exist.

Article 5. Mechanisms to monitor the implementation of the provisions giving effect to the Convention. 1. National Forum for the Elimination of Child Labour (FNPETI). The Committee notes with interest that the Government has established several mechanisms to prevent and eliminate child labour in its worst forms. It notes, in particular, that FNPETI has the competence to discuss public policies and matters relating to preventing and combating child labour in Brazil. FNPETI was set up in 1994 with the support of ILO and UNICEF and is coordinated by the Ministry of Labour and Employment. According to the Government, its principal faculties are focused on coordinating the activities of its members (includes governmental organizations, as well as representatives of workers, and employers and NGOs), with a view to achieving an integrated policy for protecting children and adolescents and to providing final solutions to ensure the eradication of any and all forms of illegal exploitation of child and adolescent labour. It sets forth the priorities for the prevention and elimination of the worst forms of child labour.

2. Special Groups for Fighting Child Labour and Protecting Working Adolescents (GECTIPAs). The Committee notes that GECTIPAs was set up by Order No. 7 of 23 March 2000, and is coordinated by the Ministry of Labour and Employment. By virtue of section 2 of Order No. 7, GECTIPAs has as its goal the eradication of child labour and the guarantee of the rights of young persons at work. The Committee also notes the adoption of Order No. 1 of 23 March 2000 which issues guidance to labour auditor-inspectors on the procedures they should adopt with respect to cases of child labour and young persons at work.

3. National Council for the Eradication of Child Labour (CONAETI) and National Council for Children’s and Young Persons’ Rights (CONANDA). CONAETI was set up by the Ministry of Labour and Employment, Order No. 365 of 12 September 2002 and reformed under Order No. 952 of 8 July 2003. According to section 1(IV) of Order No. 952, CONAETI has the competence to propose mechanisms to ensure the implementation and enforcement of Convention No. 182. Moreover, CONANDA was set up by Decree No. 8.242 of 12 October 1992. The competencies of CONANDA were established by Decree No. 5.089 of 20 May 2004. According to section 2 of Decree No. 5.089/2004, CONANDA’s role includes, among others: preparation of general principles of national policy on the protection of children’s and young persons’ rights (clause I); overseeing the implementation of the national policy on the protection of children and young persons (clause II); assessing state and municipal policies and the performance of the state and municipal councils for children’s and young persons’ rights (clause III); supporting educational campaigns on promotion of children’s and young persons’ rights (clause V); managing the National Fund for Children’s and Young Persons’ Rights (clause VIII). The Committee requests the Government to provide information on the mechanisms designated to monitor the implementation of national provisions giving effect to the Convention (i.e. any extracts of reports or documents showing the functioning of these mechanisms), in particular as regards the functioning and achievements of the FNPETI, GECTIPAs, CONAETI and CONANDA.

4. Mobile Inspection Group. The Committee notes the information provided by the Government that the elimination of forced labour is a priority for the Federal Government. Thus, the Ministry of Labour and Employment’s Mobile Inspection Group has been established to travel all over the country to investigate complaints. Moreover, the Committee notes that the Government has adopted Order No. 1.234 of 17 November 2003 which establishes procedures on how to communicate information on the findings of the Labour Inspectorate to other Government bodies. In particular, the procedures provide for the possibility of supplying the Government with a list of employers who have been exploiting slave labour. The Committee requests the Government to provide information on the results achieved by the Ministry of Labour and Employment’s Mobile Inspection Group and on the mechanisms set up by Order No. 1.234 of 17 November 2003 with regard to monitoring the implementation of the provisions giving effect to the Convention.

Article 6, paragraph 1. Programmes of action to eliminate the worst forms of child labour. 1. Programme for the Elimination of Child Labour (PETI). The Committee notes that PETI, as a government programme and activity, is the main instrument of public policy for the prevention and eradication of child labour. PETI is under the authority of the Ministry of Welfare and Social Assistance and of the Ministry of Labour and Employment. It was introduced as a pilot scheme in 1996, and is now established in all the 27 federal states reaching a population of 810,116 children and young persons across the country. PETI is a conditional income transfer programme which consists of a monthly grant (called the child-citizen grant - Bolsa Criança-Cidadä) to families who have children aged seven to 15 years who work and who withdraw them from work and ensure their attendance at school. According to the Government’s information, the number of grants increased from 3,710 scholarships in 1996 to 866,000 in March 2002. The Committee requests the Government to provide information on the manner in which PETI could detect and prevent as a priority the worst forms of child labour, in consultation with workers’ and employers’ organizations and taking into account the views of other concerned groups.

2. Programme on child trafficking. The Committee notes the information provided by the Government according to which the Department of Children and Adolescents is carrying out the research project entitled traffic in women, children and adolescents for the purposes of sexual exploitation in Brazil. The Committee notes that its report to the Committee on the Rights of the Child in September 2004 (CRC/C/3/Add.65, paragraph 666), the Government declared that the results of this study are being used by the National Secretariat for Human Rights as indicators for developing a policy agenda that it is expected to pull together resources to strengthen networks that protect children and adolescents and the law enforcement system. The Committee requests the Government to provide information on details of the achievements and impact of the project on traffic in women, children and adolescents for the purposes of sexual exploitation in Brazil.

Article 7, paragraph 1. Measures to ensure the effective implementation and enforcement of the provisions giving effect to the Convention. The Committee notes that according to section 149 of the Penal Code, as amended by Act No. 10.803 of December 2003, whoever subjects any person to conditions similar to slavery is liable to two to eight years’ imprisonment and a fine. By virtue of section 149(2), the penalty shall be increased by a half if the offence is committed against a child or adolescent. Moreover, under the terms of section 206 of the Penal Code, it is an offence to recruit workers, through fraudulent means, with a view to taking them abroad. It also notes that section 207(1) of the Penal Code make it an offence to recruit workers through fraudulent means or by receiving payments or benefits from the workers, or without ensuring their return to their original residence, with a view to taking them to another locality in the territory, Section 207(2) of the Penal Code states that the penalty shall be increased by one-sixth to one-third if the victim is under the age of 18. According to section 231 of the Penal Code, the trafficking of women is an offence punishable by imprisonment of three to eight years. Section 231(1) increases the penalty from four to ten years of imprisonment, in case the victim is above the age of 14 and under 18 years old. Furthermore, section 240 of the Statute of the Child and Adolescent states that any person who produces or directs theatre productions, television plays or cinema films, photos or any other media utilizing a child or adolescent in scenes of explicit or pornographic sex, is liable to imprisonment for two to six years and a fine. Section 241 of the Statute of the Child and Adolescent carries penalties of a maximum of six years’ imprisonment and a fine for anyone who presents, produces, sells, supplies, distributes or publishes by any means of communication, including the Worldwide Web, photos or images containing pornography or scenes of explicit or pornographic sex involving a child or adolescent. Finally, section 434 of the Consolidated Labour Act, as amended by Decree No. 229/1967, states that the violation of any of the rules concerning child labour will be punishable by a fine corresponding to one minimum wage for each child concerned. The Committee requests the Government to provide information on the practical application of the penalties laid down in the relevant national provisions.

Paragraph 2. Effective and time-bound measures. The Committee notes with interest that since September 2003, the Government is implementing the ILO/IPEC supported Time-Bound Programme (TBP) on the worst forms of child labour. It notes that the activities and strategies foreseen by the TBP are supposed to represent a pilot of the National Plan of Action for the Elimination of Child Labour in five selected states (Maranhão, Paraíba, Rio de Janeiro, São Paulo and Rio Grande do Sul). The forms of child labour prioritized are: (1) hazardous agricultural activities; particularly household agricultural activities (in rural and urban areas); (2) hazardous child work in the informal sector (urban areas); (3) child domestic labour (rural and urban areas); (4) sexual exploitation for commercial purposes (rural and urban areas); (5) drug farming and drug trafficking (rural and urban areas). The TBP will provide assistance to develop key programmes and activities to create the necessary conditions to make possible the elimination of child labour in Brazil, particularly its worst forms. At the national level, the TBP will focus on the creation of an enabling environment by executing activities in the following areas: knowledge generation and communication; awareness raising; education; and capacity building.

Clauses (a) and (b). Prevent the engagement of children in the worst forms of child labour and direct assistance for the removal of children and for their rehabilitation. The Committee notes that under the TBP, a total of 4,000 girls and boys will be targeted for withdrawal and prevention from exploitative and hazardous work through the provision of educational services following direct action from the project. ILO/IPEC estimates that 2,666 boys and girls will be withdrawn from work and 1,334 will be prevented from being engaged in child labour. The Committee requests the Government to provide information on the number of children under the age of 18 who were prevented from engaging in the worst forms of child labour in the sectors targeted by the TBP. The Committee also requests the Government to provide information on the impact of the TBP with regard to removing children from the worst forms of child labour in the sectors targeted by it, and providing for their rehabilitation and social integration.

Clause (c). Ensure access to free basic education and vocational training of all children removed from the worst forms of child labour. The Committee requests the Government to indicate the effective and time-bound measures taken to ensure access to free basic education or vocational training of the girls and boys targeted by the TBP.

Clause (d). Identifying and reaching out to children at special risk. 1. Child victims of HIV/AIDS. The Committee notes that according to the information available at the Joint United Nations Programme on HIV/AIDS, the HIV/AIDS pandemic is affecting every community in Brazil. The Committee observes that the pandemic of HIV/AIDS has consequences on child victims of AIDS and orphans who might more easily engage in the worst forms of child labour. It requests the Government to provide information on effective and time-bound measures taken to address the situation of these children.

2. Child domestic workers. The Committee notes the information provided by the Government that Order No. 78 of 19 April 2002 set up a technical committee composed of ministerial departments, international organizations, including the ILO, and NGOs. The objectives of the technical committee were discussed and it presented a proposal for an intervention strategy for child domestic labour, with the task of analysing the context of child domestic labour in Brazil. The technical committee also discussed control mechanisms to keep children and young persons out of this kind of work and proposed guidelines for specific intervention to combat the problem. The technical committee concluded its work in December 2002 and submitted a draft plan of action on the subject. The Committee notes that Inter-ministerial Order No. 6 of 23 July 2003, published by the Ministers of Social Action, Labour and Employment and Education, set up the Special Committee on Domestic Child Labour (CETID), with a view to pursuing the discussion on domestic child labour already under way. The Committee asks the Government to provide information on measures taken to protect child domestic workers under 18 from work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children. It also asks the Government to communicate a copy of the plan of action on child domestic workers.

Clause (e). Take account of the special situation of girls. The Committee asks the Government to provide information on the manner in which the TBP will take account of the special situation of girls.

Article 8. International cooperation and/or assistance. The Committee notes that Brazil is a member of Interpol which helps cooperation between countries in the different regions especially in the fight against trafficking of children. The Committee notes that Constitutional Amendment No. 31 of 14 December 2000 created the Fund for the Prevention and Eradication of Poverty. It notes that article 79 of the Federal Constitution states that the objectives of the Fund for the Prevention and Eradication of Poverty are to provide all Brazilians access to reasonable levels of subsistence. The resources of the Fund will be allocated to providing additional nutrition, housing, education, health, enhancing family incomes and other relevant programmes of social interest to enhance the quality of life. The Committee notes that the Government works with the World Bank on a project entitled: "The Maranhao Integrated Programme for Rural Poverty Re-education". The Committee asks the Government to continue to supply information on international cooperation and/or assistance received to tackle the worst forms of child labour. Noting that poverty reduction programmes contribute to breaking the cycle of poverty which is essential for the elimination of the worst forms of child labour, the Committee also requests the Government to supply information on any notable impact of the Maranhao Integrated Programme for Rural Poverty Re-education on eliminating the worst forms of child labour.