Relatórios apresentados no quadro do Conselho
da Europa e Decisões do Comité de Ministros
sobre a Aplicação da Carta Social Europeia
COMPLAINT No. 1/1998, By the International Commission
of Jurists against Portugal
REPORT TO THE COMMITTEE OF MINISTERS
Strasbourg, 9 September 1999
1. In accordance with Article 8 paragraph
2 of the Protocol providing for a system of collective complaints,
the European Committee of Social Rights, committee of independent
experts of the European Social Charter (hereafter referred
to as "the Committee") transmits to the Committee
of Ministers its report in respect of complaint 1/1998. The
report contains the decision of the Committee on the merits
of the complaint (adopted on 10 September 1999). The decision
as to admissibility (adopted on 10 March 1999) is appended.
2. The Protocol entered into force on
1 July 1998 and has been ratified by Cyprus, Finland, France,
Greece, Italy, Norway, Portugal and Sweden. Slovenia is also
bound by this procedure, in accordance with Article D of the
Revised Social Charter of 1996.
3. When examining this first complaint,
the Committee based its procedure on the rules it adopted
in 1997 (Conclusions XIV-1, pp. 29-31). Since then, the Committee
has adopted new rules which incorporate the rules concerning
the procedure for collective complaints with a certain number
of amendments and applies as of 9 September 1999.
4. The first case concerns Article 7
para. 1 of the Charter, i.e. the prohibition on labour under
the age of fifteen years. In its decision on admissibility,
the Committee reached the conclusion that the complaint is
admissible. In its decision on the merits, the Committee concluded
that the situation in Portugal is not in conformity with Article
7 paragraph 1 of the Charter.
5. The International Commission of Jurists,
which brought the complaint, requests that the Portuguese
Government pay it the sum of 50,000F in respect of its costs
in preparing and submitting the complaint. The Committee leaves
this matter for the Committee of Ministers to decide.
6. It is recalled that in accordance
with Article 8 paragraph 2 of the Protocol, the present report
will not be published until the Committee of Ministers adopts
a recommendation or, at the latest, four months after its
transmission to the Committee of Ministers on 10 January 2000.
DECISION ON THE MERITS
COMPLAINT NO. 1/1998, By the International
Commission of Jurists against Portugal
The European Committee of Social Rights,
committee of independent experts of the European Social Charter
established under Article 25 of the European Social Charter
(hereafter referred to as "the Committee"), during
its 163rd session attended by:
Messrs. Matti MIKKOLA, President
Rolf BIRK, Vice- President
Stein EVJU, Vice-President
Ms Suzanne GRÉVISSE, General Rapporteur
Messrs. Konrad GRILLBERGER
Alfredo Bruto DA COSTA
Ms Micheline JAMOULLE
Assisted by Mr Régis Brillat, Secretary
to the Committee
In the presence of Mme ANCEL-LENNERS, observer of the International
After having deliberated on 30 June, 8 and 9 September 1999;
Delivers the following decision adopted on 9 September 1999:
1. On 10 March 1999, the Committee declared
the complaint admissible by the appended decision.
2. In accordance with Article 7 paras.
1 and 2 of the Protocol providing for a system of collective
complaints and with the Committee's decision of 10 March 1999
on the admissibility of the complaint, the Secretary to the
Committee communicated on 12 March 1999 the text of its admissibility
decision to the Portuguese Government, to the International
Commission of Jurists (ICJ), to the Contracting Parties to
the Protocol as well as to the European Trade Union Confederation
(ETUC), the Union of the Confederations of Industry and Employers
of Europe (UNICE) and the International Organisation of Employers
(IOE), inviting them to submit their observations on the merits
of the complaint. The Secretary to the Committee also communicated
the text of the decision to the Contracting Parties to the
Charter for their information.
3. The Portuguese Government submitted
its observations on the merits along with four appendices
on 29 March 1999. The ETUC submitted observations on 28 May
1999, following an extension of the time limit. The complainant
organisation submitted its observations along with one appendix
on 7 June 1999 following an extension of the time limit. The
Portuguese Government submitted supplementary observations
along with an appendix on 29 June 1999, following an extension
of the time limit.
4. In accordance with Article 7 para.
3 of the Protocol, each party received the observations of
the other, as well as those of the ETUC.
5. The Portuguese Government and the
ETUC suggested in their observations that the Committee organise
a hearing in accordance with Article 7 para. 4 of the Protocol.
On the basis of Article 10 of the rules of procedure, the
Committee did not consider it necessary to organise such a
SUBMISSIONS OF THE PARTICIPANTS IN
a) The complainant organisation
6. The ICJ requests the Committee to
declare that Portugal is in violation of Article 7 para. 1
of the Charter, which reads as follows:
"With a view to ensuring the effective
exercise of the right of children and young persons to protection,
the Contracting Parties undertake:
1. to provide that the minimum age of
admission to employment shall be 15 years, subject to exceptions
for children employed in prescribed light work without harm
to their health, morals or education;"
It alleges, as stated in the second paragraph
of the admissibility decision, that "notwithstanding
the statutory provisions adopted and the measures taken by
Portugal to prohibit child labour and to ensure that this
rule is enforced, a large number of children under the age
of 15 years continue to work illegally in many economic sectors,
especially in the north of the country. It further maintains
that the Labour Inspectorate, which is the principal body
for supervising compliance with the legislation on child labour,
is not in a position to perform its functions effectively.
It states that the working conditions imposed on these children
are harmful to their health. It recalls that states which
are bound by Article 7 para. 1 of the Social Charter are required
not just to set the minimum age of admission to employment
at 15 but also to take the necessary measures to ensure satisfactory
application of this rule. Moreover, it recalls that the prohibition
on employing children under the age of 15 also applies to
children working in family businesses".
7. The ICJ relies on various documents,
including a report published by a non-governmental organisation
in 1992 , which estimates that, at that time, 200,000 children
under the age of 15 worked in poor conditions which affected
their health. It adds that the Labour Inspectorate has often
been the target of allegations of corruption or simply lack
of motivation and efficiency.
b) The Portuguese Government
8. In its observations on the merits
of the complaint, the Government recalls firstly that Portugal
has ratified many international conventions concerning the
prohibition of child labour, which demonstrates its firm political
intention to implement all of the provisions and principles
of these conventions. It has ratified all of the provisions
of the European Social Charter, including Article 7 which
guarantees the right of children and adolescents to protection.
It is one of the first states to have ratified the Protocol
providing for a system of collective complaints. It has also
ratified the International Covenant on Civil and Political
Rights as well as the International Covenant on Economic,
Social and Cultural Rights of the United Nations, of which
Article 24 and Article 10 para. 3 respectively concern the
protection of minors. It has in addition ratified the United
Nations Convention on the Rights of the Child as well as International
Labour Organisation Convention No. 138 on minimum age, 1973.
9. The Government considers that this
places it in an unfavourable position in relation to states
that have not ratified the above-mentioned instruments and,
in particular, to Contracting Parties to the Charter that
have not accepted Article 7 in its entirety and who are consequently
not subject to any international supervision in this area.
10. The Government then proceeds to analyse
the evidence provided by the complainant organisation. It
maintains that some of the appendices should not be taken
into account as they contain evidence relating to the period
1994-95, covered by Recommendation R Ch S(98) 5 of the Committee
of Ministers. The Committee should only consider, according
to the Government, those appendices which contain evidence
dating from after the Recommendation.
11. It asserts that in any event the
statistics on child labour in these documents are not reliable.
It relies on the results of the statistical survey carried
out in October 1998 (the period of reference being the last
week of September) in collaboration between the statistics
department of the Portuguese Ministry of Labour and the International
Labour Organisation (statistical service and the International
Programme on the Elimination of Child Labour (IPEC)). In its
view, the Committee should in the present case take account
of the information and statistics on child labour produced
by this survey only.
12. The Government explains the methodology
chosen for the survey. Covering 26,569 families, the survey
recorded the statements of heads of household and of children.
All minors from the age of 6 up to and including 15 years
performing an activity which contributed to the national product
for more than one hour per week were considered by the survey
as children performing an economic activity. The survey did
not distinguish between the "light work" permitted
by the Charter under Article 7 para. 1 and prohibited work.
13. The Government then presents the
results of the survey, which found that:
- 46.6% of the children who declared that they performed an
economic activity were 13 or 14 years old;
- 90.8% of the children aged between
6 and 14 years who declared that they performed an economic
activity did so as unpaid family members while 9.8% were
- Among the unpaid family members,
93.6% attended school and 6.4% had left, of which 3.1% had
completed compulsory education. 68% of the paid workers
aged between 6 and 14 years attended school;
- 66% of the children aged between
6 and 14 years who declared that they performed an economic
activity worked in the agricultural sector, 9.6% in restaurants,
9.2% in retail, 7.1% in manufacturing, 2.7% in construction
and 5.5% in other activities
- 73.6% of the children aged between
6 and 14 years who declared that they performed an economic
activity in the agricultural sector worked on average for
three hours or less daily; 21.9% worked for between four
and six hours and 4.5% of these children worked more than
six hours. 58.1% of the children engaged in manufacturing
worked on average for three hours daily or less; 22.6% worked
for between four and six hours and 19.4 % worked for more
than six hours. 33.3% of children engaged in construction
worked on average for three hours or less daily; 33.3% worked
for between four and six hours and 33.3% worked for more
than six hours per day. 60% of children engaged in retail
worked on average for three hours or less daily; 14.3% worked
for between four and six hours and 10% worked for more than
six hours. 69% of children engaged in the hotel and restaurant
sector worked on average for three hours or less daily;
4.3% worked for between four and six
hours and 16.7% worked for more than six hours. Lastly,
68.4% of these children worked on average for three hours
or less daily across all sectors.
14. In the Government's view, the results
of the survey show that the number of children aged between
6 and 14 years, who are covered by Article 7 para. 1 of the
Charter, who performed an economic activity during the reference
period of the survey, is relatively small and far below that
alleged in the complaint. This number is between 12,000 (according
to statements made by parents) and 27,500 (according to statements
made by children, of whom 25,000 performed unpaid work as
part of the household economy and 2,500 performed paid work.
The Government maintains that unpaid activity within the family
does not come within the scope of Article 7 para.1. The only
family work covered by this provision is that performed in
family businesses and the work of domestic employees, which
are different from helping out the family. It asserts that
the results of the survey prove that child labour in Portugal
occurs almost completely within the context of helping out
the family. It adds that in any event the activities performed
in this setting are "light work, occasional or for a
short duration which does not affect the completion of compulsory
education", i.e. this is "light work" authorised
by Article 7 para. 1. It considers that just the 2,500 children
who, according to the survey, performed a paid activity worked
in conditions which were incompatible with the requirements
of Article 7 para. 1, as work performed by children as part
of helping out the family constitutes a different problem
which comes under Article 7 para. 10 of the Charter.
15. The Government describes the measures
to combat child labour taken since 1995 (the measures adopted
beforehand have already been assessed by the European Committee
of Social Rights as part of its examination of national reports).
It stresses that combating child labour
is considered to be a priority by the Government as well
as the social partners (Programme of the Thirteenth Government,
strategic co-operation agreement of December 1996, creation
of the Plan to Eliminate the Exploitation of Child Labour
and the National Council Against the Exploitation of Child
Labour). It states that a bill to extend to the self-employed
sector the prohibition on child labour under the age of
sixteen and another to increase the sanctions applicable
in cases of illegal work, non-compliance with compulsory
schooling or with the legislation and rules concerning light
work are currently before the National Assembly. It also
lists many measures adopted to combat academic failure and
"dropping out", to combat poverty and social exclusion
(introduction in 1996 of the minimum income benefit, the
payment of which is linked to attendance at school by the
children of the families in receipt of benefit) as well
as measures in the fields of social security and employment
(for example, linking the level of family benefit to family
16. The Government further contests the
ICJ's allegation that the Labour Inspectorate is incapable
of carrying out effective supervision. It points to improvements
in the staffing levels and training of labour inspectors.
It recalls that they make many unannounced visits which focus
specifically on the detection of illegal child labour, and
request trade unions, non-governmental organisations and schools
to inform it of any cases of illegal child labour, failure
to attend school or "dropping out" which they may
be aware of. Labour inspectors have the authority to inspect
the home of the employer, since the legislation on child labour
applies to declared work in the home. The Government stresses
however that the Labour Inspectorate cannot make inspection
visits to private dwellings where children work illegally.
This is the responsibility of other public services such as
the educational, health, social security, employment and vocational
17. The Government criticises vigorously
the allegations of bribery and corruption made against the
Labour Inspectorate in the complaint. It observes that no
evidence is produced in support of these allegations. It states
that no complaint or allegation of corruption has ever been
made against labour inspectors.
18. In conclusion, the Government affirms
that although some instances of child labour still exist within
the state, it would be unfair to conclude that the situation
in Portugal fails to comply with Article 7 para. 1 in the
light of the measures implemented to eradicate this problem.
c) The European Trade Union Confederation
19. In its observations, the ETUC recalls
that it places great importance on the Charter in general
and on the new developments in the supervisory system in particular.
It wishes to contribute to the Charter becoming a living instrument
to strengthen basic social rights in practice.
20. It invites the Committee to give
a clear interpretation of Article 7 para. 1 which covers all
areas of activity without exception, including activities
carried out within the family (apart from domestic chores
in the proper sense).
21. As to the situation in Portugal,
the ETUC recalls that in 1974 trade unions carried out a review
of the social situation, underlining the seriousness of child
labour. It notes that in recent years legislative and practical
measures have improved the effectiveness of the struggle against
child labour, as demanded by trade union organisations.
22. The ETUC nonetheless takes the view
that in spite of the efforts deployed by the Portuguese Government,
the situation still fails to comply in practice with the requirements
of Article 7 para. 1.
ASSESSMENT OF THE COMMITTEE
23. The Committee acknowledges firstly
the legal obligation assumed by the Government in accepting
all of the European Social Charter and, more particularly,
all of the paragraphs of Article 7, as well as in ratifying
the Protocol providing for a system of collective complaints.
It observes that to date, few states have accepted as many
international commitments under the Charter.
24. It observes however that the examination
of the present complaint does not entail any comparison between
the case of Portugal and that of the other states which have
ratified the Charter, nor any assessment of the situation
in these states in respect of Article 7 para. 1.
25. The Committee recalls the aim and
scope of Article 7 para. 1 of the Charter as specified in
its Conclusions in examining national reports.
26. This provision prohibits child labour
under the age of fifteen, with certain exceptions. It aims
to ensure the protection of children and adolescents against
the risks associated in performing work which may have negative
repercussions on their health, their moral welfare, their
development and their education (Conclusions V, p. 55).
27. The prohibition relates to:
- all economic sectors and all types
of enterprises, including family businesses, as well as
all forms of work, whether paid or not (see in particular
Conclusions VII, p. 41),
- agricultural and domestic work, which
the Committee has declared cannot be automatically considered
to be light work within the meaning of this paragraph (Conclusions
I, p. 42),
- homeworking and sub-contracting.
28. Work within the family (helping out
at home) also comes within the scope of Article 7 para. 1
even if such work is not performed for an enterprise in the
legal and economic sense of the word and the child is not
formally a worker. Although the performance of such work by
children may be considered normal and even forming part of
their education, it may nevertheless entail, if abused, the
risks that Article 7 para. 1 is intended to eliminate. The
supervision required of states must, in such cases, as the
Portuguese Government itself observes, concern not just the
Labour Inspectorate but also the educational and social services.
29. If Article 7 para. 1 provides for
an exception to the prohibition on work under the age of fifteen
years in respect of "prescribed light work", this
can only mean work which does not entail any risk to the health,
moral welfare, development or education of children. The light
nature of the work is assessed on the basis of the circumstances
of each case.
30. The nature of the work is a determining
factor. Work which is unsuitable because of the physical effort
involved, working conditions (noise, heat, etc.) or possible
psychological repercussions may have harmful consequences
not only on the child's health and development, but also on
its ability to obtain maximum advantage from schooling and,
more generally, its potential for satisfactory integration
in society. In order to comply with Article 7 para. 1, states
are therefore required, under the supervision of the Committee,
to define the types of work which may be considered light,
or at the very least to draw up a list of those which are
31. Work considered to be "light"
in nature ceases to be so if it is performed for an excessive
duration. States are therefore required to set out the conditions
for the performance of "light work", especially
the maximum permitted duration and the prescribed rest periods
so as to allow supervision by the competent services. Even
though it has not set a general limit on the duration of permitted
light work, the Committee has considered that a situation
in which a child under the age of fifteen years works for
between twenty and twenty-five hours per week during school
term (Conclusions II, p. 32), or three hours per school day
and six to eight hours on week days when there is no school
is contrary to the Charter (Conclusions IV, p. 54).
32. Finally, the Committee recalls that
the aim and purpose of the Charter, being a human rights protection
instrument, is to protect rights not merely theoretically,
but also in fact. In this regard, it considers that the satisfactory
application of Article 7 cannot be ensured solely by the operation
of legislation if this is not effectively applied and rigorously
supervised (see for example Conclusions XIII-3, pp. 283 and
286). It considers that the Labour Inspectorate has a decisive
role to play in effectively implementing Article 7 of the
33. In the light of these principles,
the Committee notes first that, according to the information
provided by the Government and mentioned by the Committee
in Conclusions XIII-5, in Portugal only young people who are
already aged fifteen (as of 1 January 1997) and who have completed
compulsory schooling of nine years may be employed in light
work. Accordingly, any work, including light work, performed
by a child under the age of fifteen is illegal. The statutory
measures adopted in Portugal to implement Article 7 para.
1 are rigorous, which the Committee can only welcome.
34. However, the Committee observes from
the evidence contained in the file that in Portugal, children
under the age of fifteen actually perform work. It notes that
the Government does not dispute this. In order to seek to
establish the exact dimensions of this problem and its characteristics,
it may take account of all information submitted by the parties,
whatever the period it relates to. In the present case, it
considers it sufficient to rely on the results of the 1998
survey which provides the most recent evidence and the validity
of which is not disputed by the International Commission of
Jurists, even if its interpretation of the results differs
from that given by the Government.
35. It emerges from this survey that
in September 1998 several thousand children under the age
of fifteen years performed work in breach of the requirements
of Article 7 para. 1 of the Charter and Portuguese law. The
Committee considers in particular that the 25,000 children
who, out of an estimated total of 27,500, performed unpaid
work as part of helping out the family must be taken into
account under Article 7 para. 1.
36. The Committee notes further that,
according to the survey, a not insignificant number of children
under the age of fifteen years who declared that they performed
an economic activity work in the agricultural (66%), manufacturing
(7.1%) and construction (2.7%) sectors. These sectors may,
by their very natures, give rise to certain types of work
which may have negative consequences on the children's health
as well as on their development.
37. The Committee observes lastly that,
taking all sectors together, the duration of work declared
exceeds that which may be considered compatible with children's
health or schooling: 31.6% of the children concerned worked
on average for more than 4 hours per day across all sectors.
This percentage is particularly high in the construction sector
and the manufacturing sector where, respectively, 66.6% and
42% of the children concerned worked on average for more than
four hours per day. The Committee notes that among the children
aged between 6 and 14 years who performed paid work, just
68% attended school.
38. With particular regard to child labour
as part of helping the family out, which occurs mainly in
agriculture and the restaurant sector, according to the Government,
the Committee has no reason to presume that by its nature
or the conditions in which it is performed (duration, working
hours) it can in all cases be considered light work within
the meaning of Article 7 para. 1.
39. The Committee then considers whether the measures taken
by the Government rectify the situation criticised.
40. It acknowledges that the Government,
especially in recent years, has taken many legal and practical
measures to combat child labour, tackling its many diverse
and complex causes. These measures have brought about a progressive
reduction in the number of children working illegally, an
improvement which is not in dispute. However, it is clear
that the problem has not been resolved.
41. The Committee acknowledges that many
measures have been taken by the Government to increase the
efficiency of the Labour Inspectorate. It observes that in
1997 labour inspectors carried out 1,462 visits in enterprises
and found 167 children under the age of 16 years working illegally
there. In 1998, they carried out 2,475 visits in enterprises
and found 191 cases of children under the age of 16 working
illegally. The Committee considers that, in the light of the
results of the 1998 survey and the fact that the existing
legislation and rules cover family businesses, these figures
42. As regards the allegation of the
ICJ that the Labour Inspectorate is corrupt, which is vigorously
disputed by the Government, it is not supported by evidence.
43. Finally, as the Government recognises, efforts must be
maintained to increase the effectiveness of supervision of
children's work within the family and in private dwellings.
The Committee is aware of the difficulty of this task, which
involves the Labour Inspectorate or the educational and social
services as appropriate.
44. The Committee considers that the
other arguments advanced by the parties are secondary and
do not modify its assessment of the situation.
45. The Committee concludes that the
situation in Portugal is not in conformity with Article 7
Suzanne GREVISSE Rapporteur
Matti MIKKOLA President of the Committee
Régis BRILLAT Secretary to the Committee