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

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

The Committee notes the information provided by the Government in its report to the effect that, in the context of the process of bringing the national legislation into conformity with Conventions Nos 138 and 182, a special  subcommittee has been established to examine shortcomings in the national legislation. The Committee hopes that the Government will submit to the special  subcommittee the various issues raised below so that they can be taken into account in its work and it requests the Government to provide information on any new development in this respect.

Article 2, paragraph 1, of the Convention. 1. Scope of application. In its previous comments, the Committee noted that when ratifying the Convention the Government had specified a minimum age of 16 years for admission to employment or work and that certain provisions of the national legislation prohibited child labour under 16 years of age, including article 7, paragraph XXXIII, of the Federal Constitution of 1988 and section 403 of the Consolidated Labour Act. The Committee however noted that, under the terms of section 402 of the Consolidated Labour Act, children who have not reached the minimum age specified for admission to employment or work, namely 16 years, may work in workshops in which only the child’s family members work and which are under the management of their father, mother or guardian, with the exception of work at night (section 404) and hazardous work (section 405). The Committee requested the Government to clarify the interpretation of section 402 of the Consolidated Labour Act.

In its report, the Government indicates that section 402 of the Consolidated Labour Act excludes from the scope of the Act work by children and young persons in workshops in which only the child’s family members work and which are under the management of the father, mother or guardian, commonly termed work in family enterprises, that is economic activities intended for the subsistence and maintenance of the family. In this type work, there is no employment relationship. The Government adds that, although the national legislation does not define precisely work in a family enterprise, it may be inferred clearly from article 7, paragraph XXXIII, of the Federal Constitution of 1988 that the national legislation no longer contains provisions permitting the employment of workers under 16 years of age, with the exception of apprentices aged 14. The Government nevertheless indicates that, in view of the absence of effective legal provisions, the direct intervention of labour inspectors to combat this form of child labour is hindered, particularly since the administrative instructions on the provisions of the Consolidated Labour Act which can be used by inspectors to discharge their functions only cover workers benefiting from an employment relationship. It is therefore impossible for them to register as an offence cases in which parents work with children under 16 years of age in family enterprises. In this context, if labour inspectors, during the course of their duties, discover the existence of child labour in family enterprises, they have to report them to the Supervisory Council, as provided for in the Statute of the Child and Adolescent.

The Committee takes due note of the information provided by the Government. It understands from this information that, in accordance with the hierarchy of legal standards, article 7, paragraph XXXIII, of the Federal Constitution of 1988 prevails over the other provisions of the labour legislation in relation to the minimum age for admission to employment or work and that, accordingly, no person under 16 years of age may work, with the exception of apprentices of 14 years of age. The Committee nevertheless observes that, as section 402 of the Consolidated Labour Act is still in force and labour inspectors cannot legally engage in the monitoring of child labour in family enterprises, children may work under the minimum age for admission to employment. It also observes that children engaged in an economic activity without a contractual employment relationship need to benefit from the protection envisaged by the Convention. The Committee therefore requests the Government to take the necessary measures to grant the protection envisaged by the Convention to all children. In this respect, it would be grateful if the Government would adopt measures as soon as possible to permit the labour inspection services to target children engaged in an economic activity on their own account, particularly in family enterprises.

2. Minimum age for admission to employment or work. Work performed in streets and public places. The Committee noted previously that section 405(2) of the Consolidated Labour Act provides that work performed by a minor of between 14 and 18 years of age in streets and other public places shall be subject to prior authorization by the Juvenile Court, which is responsible for verifying that the occupation is essential for the subsistence of the minor or that of her or his parents, grandparents or siblings, and that the occupation does not prejudice the moral development of the child. The Committee noted that, under the terms of this provision, children from 14 years of age may be admitted to employment or work in streets and other public places even though the specified minimum age for admission to employment or work is 16 years. Noting the absence of information from the Government on this point, the Committee once again requests it to indicate the measures adopted or envisaged to ensure that no minor under 16 years of age is admitted to employment or work in the streets or in other public places.

Article 3, paragraphs 1 and 3. Minimum age of admission to hazardous types of work. In its previous comments, the Committee noted that section 1 of the Labour Inspection Order No. 20 of 13 September 2001 [hereinafter, Order No. 20/2001] prohibited the employment of young persons under 18 years of age in the activities enumerated in Schedule 1. It however noted that section 1(1) of Order No. 20/2001, as amended by Labour Inspection Order No. 4 of 21 March 2002, provided that this prohibition may be lifted subject to a reasoned expert opinion by a legally qualified occupational safety and health professional stating that there is no exposure to risks which might jeopardize the health and safety of the young person. The Committee noted that section 1(1) of Order No. 20/2001 was not in conformity with Article 3, paragraph 3, of the Convention since, firstly, authorization may be granted for all young persons under 18 years of age and, secondly, there is no provision requiring that the young persons concerned have received prior instruction or adequate specific vocational training in the relevant branch of activity. The Committee requested the Government to indicate the measures taken to amend section 1(1) of Order No. 20/2001 to bring it into conformity with Article 3, paragraph 3, of the Convention. The Committee noted the information provided by the Government that the National Council for the Elimination of Child Labour (CONAETI) is examining Order No. 20/2001. The Committee hopes that the CONAETI will take into account the above comments and that measures will be taken to bring section 1(1) of Order No. 20/2001 into conformity with Article 3, paragraph 3, of the Convention, by permitting the authorization of employment or work by young persons from the age of 16 years in hazardous types of work on condition that their health, safety and morals are fully protected and that they have received adequate specific instruction or vocational training in the relevant branch of activity.

Article 6. Apprenticeship. With reference to its previous comments, in which it requested the Government to take the necessary measures to ensure that young persons of 14 years of age and above involved in apprenticeship carry out their work under the supervision of a qualified and official technical and vocational training institution, the Committee notes with interest the amendments made to the national legislation in relation to apprenticeship contracts. The Committee notes in particular that section 11 of Decree No. 5598 of 1 December 2005 provides that young apprentices may not be engaged in hazardous types of work prohibited by the law. It further notes the information provided by the Government that procedures to facilitate the implementation of the legislation on apprenticeship have been adopted. The Committee requests the Government to provide more detailed information on the application in practice on the new legal system of apprenticeship with an indication of the number of child apprentices.