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

Article 3 of the Convention. Worst forms of child labour. Clause (a). 1. Sale and trafficking of children. Section 367bis of the Penal Code sets out penalties for any person who encourages or facilitates the entry or departure from the country of persons for the purposes of prostitution on the national territory or abroad. This penalty is increased if the victim is a minor. While noting that section 367bis of the Penal Code concerns the sale and trafficking of persons for the purposes of sexual exploitation, the Committee reminds the Government that Article 3(a) of the Convention also covers the sale and trafficking of young persons under 18 years of age for the purposes of their economic exploitation. It notes that the national legislation does not appear to contain provisions prohibiting this form of exploitation. It therefore requests the Government to provide information on the measures adopted or envisaged to secure the prohibition of the sale and trafficking of young persons under 18 years of age for the purposes of economic exploitation. The Committee also requests the Government to indicate the age defining the term "minor" used in section  367bis of the Labour Code.

2. Slavery, debt bondage, serfdom and forced or compulsory labour. The Committee notes that, under article 1 of the Constitution, all persons are born free and equal in dignity and rights. It also notes that article 19(2) of the Constitution provides that in Chile there are no slaves and all persons on the national territory are free. Article 19(7) of the Constitution states that no one may be deprived of personal freedom, nor may that freedom be restricted except in cases and in the manner determined by the Constitution. Article 19(16) of the Constitution provides that every individual has the right to engage in and choose freely work with fair remuneration. Furthermore, section 2 of the Labour Code sets out the freedom of individuals to engage in contracts and devote themselves to the work of their choice. The State has to guarantee workers their right to choose their work freely and to ensure compliance with the rules governing the provision of their services. Finally, section 147 of the Penal Code sets forth penalties for any person who, under any pretext, forces or requires personal services from others without justification.

3. Forced or compulsory recruitment of children for use in armed conflict. The Committee notes that section 13 or the Decree respecting the recruitment and mobilization of the armed forces provides that military duty covers all persons, without any distinction whatsoever on grounds of sex, from the ages of 18 to 45.

Clause (b). 1. Use, procuring or offering of a child for prostitution. Section 367 of the Penal Code punishes any person who encourages or facilitates the prostitution of a minor to satisfy the desires of another person. Section 367ter of the Penal Code lays down a penalty for any person who, in return for money or other services of any nature, procures the sexual services of a person over 14 years of age but under 18 years. The Committee requests the Government to indicate the age defining the term "minor" used in section 367 of the Penal Code.

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. Under section 366(1)quint of the Penal Code, any person who takes part in the production of pornography, in any manner whatsoever, making use of young persons under 18 years of age, shall be liable to a penalty. Section 374bis of the Penal Code also provides for penalties for any person who commercializes, imports, exports, distributes, disseminates or exhibits pornography, in any manner whatsoever, showing young persons under 18  years of age. Under section 366(2)quint of the Penal Code, pornography is understood as the production of any representation of young persons under 18  years of age engaged in explicit sexual activities, whether real or simulated, or any representation of their genitals for sexual purposes. Furthermore, section 30(1) of Act No. 19846 of 2003, respecting qualification for cinematographic production, as amended by section 8 of Act No. 19927 of 2004, penalizes any person who participates in the production of pornography, in any manner whatsoever, using young persons under 18 years of age for its production. Moreover, section 30 also punishes the commercialization, import, export, distribution or exhibition of this sort of material.

Clause (c). Use, procuring or offering of a child for illicit activities. The Committee notes Act No. 19336 of 1995 respecting the illicit trafficking of narcotic and psychotropic substances prohibits the illicit trafficking of narcotic and psychotropic substances. While noting the information provided by the Government in its report, the Committee recalls that, under Article 3(c) of the Convention, the use, procuring or offering of a child under 18 years of age for illicit activities, in particular the production and trafficking of drugs as defined in the relevant international treaties, is considered to be one of the worst forms of child labour. It also recalls that, under Article 1 of the Convention, each Member which ratifies it is under the obligation to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee therefore requests the Government to indicate the measures adopted or envisaged to secure the prohibition and elimination of the use, procuring or offering of a child under 18 years of age for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties, in accordance with Article 3(c) of the Convention.

Article 3(d) and Article 4, paragraphs 1 and 3. Types of hazardous work and the revision of the list of the types of hazardous work determined. The Committee notes that, under section 14(1) of the Labour Code, young persons under 18 years of age may not be admitted to work which requires the use of excessive strength nor to activities which may be hazardous to their health, safety or morals. Under section 15 of the Labour Code, work by young persons under 18 years of age in bars and other establishments of this type or in premises serving alcoholic beverages is prohibited. Section 18(1) of the Labour Code prohibits night work by young persons under 18 years of age in industrial and commercial establishments. Furthermore, section 13 of the Labour Code provides that in no case may persons under 18 years of age work more than eight hours a day. The Committee notes that, under section 225 of the Regulations respecting industrial health and safety, young persons under 18 years of age may not be engaged in underground work, the preparation and handling of explosive or inflammable materials, the cleaning of motors or transmissions that are in operation, the gathering of crude saltpetre from evaporating basins, work in general which requires excessive physical effort, or in establishments classified as unhealthy or hazardous. Section 227 of the Regulations also prohibits night work by young persons under 18 years of age in industrial and commercial establishments.

The Committee notes that, between March 2002 and January 2004, the Ministry of Labour and Social Insurance, in collaboration with ILO/IPEC, undertook a project entitled "National diagnosis of work by children and young persons and identification of cases of the worst forms of child labour". In this respect, the Committee notes the study entitled "Work by children and young persons in figures: National survey and register of the worst forms", published at the beginning of 2004. This study, based on a special survey, seeks to determine the unacceptable forms of work the elimination of which has to be a priority for the country. The Committee notes that, in the context of this study, a preliminary determination was made of the worst forms of child labour. With regard to hazardous types of work, the study classifies them as follows: "types of hazardous work due to their nature", namely work in mines, quarries or underground, work on the high seas, work at heights of over two metres, work in cold rooms, work in foundries, and "types of hazardous work by reason of the circumstances in which they are carried out", namely working days which are too long (over eight hours), night work, the lack of occupational safety and health measures and work which prevents school attendance. The Committee requests the Government to provide the list of the types of hazardous work determined once it has been finalized.

Article 4, paragraph 2. Identification of where the types of hazardous work exist. The study entitled "Work by children and young persons in figures: National survey and register of the worst forms", indicates that a system for the classification of the worst forms of child labour has been established. This classification system is intended to determine and classify the worst forms of child labour. The National Service for Young Persons (SENAME) is responsible for the centralization of the information compiled by the police and the labour services. In 2003, the register was introduced in five regions and, since 2004, the system of registration has been extended throughout the country. The Committee notes that, according to the above study, between June and December 2003, some 189 cases were entered into the data bank, of which 39 per cent were engaged in work considered hazardous by reason of its nature, namely the use of machines requiring skills and experience. The Committee requests the Government to continue providing information on the results achieved through the system of registration of the worst forms of child labour.

Article 5. Monitoring mechanisms. 1. Labour inspection. The Committee notes that the Act respecting the Labour Directorate of 1967 sets out the functions of the Labour Directorate. Under section 1 of the Act, the Labour Directorate is responsible, inter alia, for: (c) the dissemination of the technical and social principles of the labour legislation; and (d) the monitoring of the operation of trade union bodies and conciliation mechanisms. Under section 24 of the Act, labour inspectors may inspect workplaces at any hour of the day or night. In accordance with section 474 of the Labour Code, labour inspectors are responsible for the application of penalties for violations of labour and social security laws and their regulations. Furthermore, section 476 of the Labour Code provides that the Labour Directorate is responsible for supervising the application of labour legislation and for its interpretation. The Committee requests the Government to provide information on the activities of the labour inspection services, including extracts of reports or documents. It also requests the Government to provide information on the consultations held with employers’ and workers’ organizations, in accordance with the provisions of this Article.

2. Ministry of Justice. The Committee notes the Government’s indication that the Ministry of Justice is responsible for the preparation of policies relating to criminal prosecutions. With regard to prostitution, the production of pornography, pornographic performances and illicit activities, the Government emphasizes that the Ministry of Justice does not consider them as child labour, but as crimes committed against children and young persons.

Article 6, paragraphs 1 and 2. Programmes of action to eliminate the worst forms of child labour. The Committee notes with interest that, on 31 July 2002, the Government renewed the Memorandum of Understanding (MOU) with ILO/IPEC until 2007. Furthermore, the Committee takes notes of the Plan for the prevention and progressive elimination of work by children and young persons in Chile. It notes that one of the objectives of the plan is to develop a profile and to identify at the national and local levels the boys, girls and young persons engaged in activities defined as the worst forms of child labour and to provide them with social, legal and educational assistance for their reintegration. The Committee requests the Government to provide information on programmes that are developed for the implementation of the prevention plan to address the problem of the worst forms of child labour. It also requests the Government to indicate whether consultations have been held with employers’ and workers’ organizations, in accordance with Article 6, paragraph 2, of the Convention, and whether the views of other concerned groups have been taken into consideration.

Article 7, paragraph 1. Penalties. The Committee notes that under section 367bis of the Penal Code, any person found guilty of the trafficking of persons for the purposes of prostitution is liable to a lesser sentence of imprisonment (involving the obligation to work) of the maximum length and a fine of 20 monthly units. It also notes that, under section 367 of the Penal Code, a person found guilty of the crime of prostitution of a young person is liable to a higher sentence of imprisonment (involving the obligation to work) of any length and a fine of between 31 and 35 monthly units. Section 367ter of the Penal Code also provides that any person found guilty of having offered money or other services in exchange for sexual relations with a young person over 14 years of age but under 18 shall be liable to a higher sentence of imprisonment (involving the obligation to work) of the maximum length. Under section 366(1)quint of the Penal Code, any person found guilty of the production of pornography shall be liable to a lesser sentence of imprisonment (involving the obligation to work) of the maximum length. Under section 374bis of the Penal Code, a person found guilty of having commercialized, imported, exported, distributed, disseminated or exhibited pornography shall be liable to a lesser sentence of imprisonment (involving the obligation to work) of middle or maximum length. Furthermore, section 30 of Act No. 19846 of 2003 respecting qualifications for cinematographic production provides for the same penalties as the Penal Code. The Committee notes that section 477 provides that violations of the Labour Code and its supplementary legislation shall be penalized by a fine of between one and ten monthly units, supplemented by 0.15 monthly units for each worker affected by the sentence. Finally, section 256 of the Regulations respecting industrial health and safety provides for a fine of between 100-500 pesos. In the event of offences, the fine is between 500-1,000 pesos.

Article 7, paragraph 2. Effective and time-bound measures. The Committee notes with interest that, in the context of an ILO/IPEC subregional programme, the Government undertook from December 2002 to February 2004 a project entitled "Programme of prevention and assistance to girls and boys subject to commercial sexual exploitation in Chile" in the cities of Santiago, Concepcion and Talcahuano. The objective of the programme is to contribute to the progressive elimination of commercial sexual exploitation.

Clauses (a) and (d). Preventing the engagement of children in the worst forms of child labour and children at special risk. The Committee notes that, according to the above document, the Programme of prevention and assistance to girls and boys subject to commercial sexual exploitation in Chile will be of indirect benefit to the families, including sisters and brothers, of the young persons under 18 years of age concerned by the programme, and to street children at special risk. The Committee requests the Government to provide information on the measures taken in the context of the programme to protect these young persons. It also requests the Government to provide statistical data on number of children who are in practice prevented from being engaged in commercial sexual exploitation in Chile as a result of the implementation of the programme.

Clause (b). Assistance for the removal of children from the worst forms of child labour. The Committee notes that a total of 120 girls, boys and young persons concerned by the Programme of prevention and assistance to girls and boys subject to commercial sexual exploitation in Chile will receive medical care and legal assistance. It also notes that the three specific objectives of the programme are to: (1) remedy the psychosocial harm and restore their rights to girls and boys affected by commercial sexual exploitation; (2) develop and strengthen relations between girls, boys and young persons with their families, other important persons or those who are close to them; and (3) establish local and inter-sectoral networks. The Committee requests the Government to provide information on the measures adopted to ensure that these three objectives are achieved. It also requests the Government to provide statistical data on the number of children who are in practice removed from commercial sexual exploitation.

Clause (c). Access to free basic education. The Committee notes with interest that, according to the study entitled "Work by children and young persons in figures: National survey and register of the worst forms", some 94.6 per cent of girls, boys and young persons between the ages of 5 and 17 do not work and devote themselves principally to studying and activities appropriate for their age. The Committee also notes that, of the 120 girls, boys and young persons concerned by the Programme of prevention and assistance to girls and boys subjet to commercial sexual exploitation in Chile, 80 will benefit from educational measures and 40 will receive vocational training. The Committee requests the Government to provide information on the educational and vocational training measures envisaged by the programme. It also requests it to indicate the number of young persons who, after being removed from work, have in practice benefited from educational measures or received vocational training.

Clause (e). Special situation of girls. The Committee requests the Government to indicate the manner in which it intends, in the context of the Programme of prevention and assistance to girls and boys subject to commercial sexual exploitation in Chile,to take account of the special situation of girls and protect them from the worst forms of child labour.

Paragraph 3. Designation of the competent authority responsible for the implementation of the provisions giving effect to the Convention. The Committee notes that the National Service for Young Persons (SENAME) is a public body within the Ministry of Justice and undertakes activities to achieve the social reintegration of girls, boys and young persons under 18 years of age. It requests the Government to provide information on the activities of SENAME and to inform it of any other competent authority designated as responsible for the implementation of the provisions giving effect to the Convention.

Article 8. Enhanced international cooperation and/or assistance. The Committee notes the information provided by the Government that the Ministry of Planning and Cooperation has prepared a National policy for children. This policy addresses, among other issues, family development, education and the protection of rights. With regard to the family, the Committee notes the project FOSIS-MIDEPLAN of the Family Foundation and the National Women’s Service (SERNAM), which targets the poorest families. It also notes the project entitled "Reinforcing the family in urban areas" of the Sub-secretariat for Regional Development (SUBDERE) and the World Bank, the objective of which is to reinforce the action taken for the family at the local level. Furthermore, the Committee notes that Chile is a member of Interpol, an organization which assists in cooperation between countries in the various regions, particularly to combat the trafficking of children. The Committee encourages the Government to cooperate with other countries and requests it to continue to provide detailed information on enhanced international cooperation and/or assistance, including support for social and economic development, poverty eradication programmes and universal education.

Parts IV and V of the report form. Application of the Convention in practice. According to the study entitled "Work by children and young persons in figures: National survey and register of the worst forms", some 107,676 girls, boys and young persons are engaged in unacceptable forms of activity. Of these, 39,547 are between 15 and 17. These children work in the street, at night, for over 14 hours a day, over 49 hours a week and do not attend school. The Committee notes that, according to the study, of the 189 cases included in the register of the worst forms of child labour, 16 per cent concern commercial sexual exploitation (sexual tourism and the use of children for pornography) and 9 per cent consist of illicit activities (the production and trafficking of drugs). The Committee requests the Government to continue providing statistics and information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, investigations, prosecutions, convictions and penalties. To the extent possible, all information provided should be disaggregated by sex.