In Bolivia, working children organised in their own trade union (UNATSBO) fought for years for a law that would protect them from exploitation and guarantee them participation in affairs that concern them. Such a law was developed with the participation of working children from 2011, was passed by parliament and came into force on 4 August 2014. It interpreted children's rights in the spirit of the traditions of indigenous communities and with respect for the social and cultural reality of the country. However, against the will and without consultation of the working children, the progressive parts of the law were repealed at the end of 2018. Although this disappointed children's expectations, the law and its history remain a lesson for further struggles for the right of children to work in dignity.
The achievements of the law
The law had emphasised that all working children have the right to be protected by the state at all levels, by the family and by society from economic exploitation and from any work that entails risks, in particular jeopardising their right to education, their health, their dignity and their integral development. This included the right of children to be heard and to participate in all decisions which affect them. The state commited itself to implementing prevention and protection programmes at all political levels for working children under the age of 14, and in particular to support families living in extreme poverty. This should not only ensure comprehensive protection of working children, but also make it easier for them to defend themselves against violations of their rights. The fight against poverty should remove at least some of the reasons that force families to rely on their children's labour or force children to make do with any work they can for a living. In this way, the structural causes of the economic exploitation of children should be addressed.
The fact that for the first time the new law did not provide for a general ban on the employment of children (i.e. "child labour") under the age of 14, but instead opted for a regulation which differentiates according to the type of work and the age of the children, caused an international sensation. Children between the ages of 10 and 14 were allowed to work "in exceptional cases" and under special conditions, and they were guaranteed appropriate labour rights and protection against violence and exploitation.
The law differentiated between different forms of work. Work carried out by children in the family and communitarian community was recognised as legitimate regardless of age. This included domestic and agricultural activities carried out as part of family subsistence farming or as collective work projects of the community. The law (similarly to the Bolivian Constitution) explicitly ascribed to these activities a positive role in the socialisation of children and their education as active and responsible citizens. However, it was also emphasised in the law that the activities must not in any way infringe the rights of children, deprive them of their dignity or impede their integral development and schooling.
The law distinguished between this type of work and work which was created with the urban monetary economy or the capitalist economy and which is usually carried out to earn income. These included work carried out independently or "on one's own account" (i.e. as a small business owner or self-employed in the informal sector) and work carried out in dependence on an "employer" and usually remunerated with money (work "for third parties"). These forms of work remained prohibited in principle by law for children under 14 years of age, but "exceptions" were provided for above certain age limits. According to these, children could work on their own account from the age of 10 and carry out dependent work from the age of 12, provided that certain conditions were met and the respective work was approved by the responsible local children's rights office (Defensoría de la Niñez y Adolescencia). Permission could only (but should) be granted if the work does not interfere with the right to education and does not endanger the health, dignity and integral development of children and adolescents. It was considered fundamental that all work should be in accordance with the free will of the children and should have their expressed consent. In addition, all working children should be recorded in a register at the Ministry of Labour and thus be subject to special supervision.
Dangerous work that can harm children was included in a list to be updated every five years. Under no circumstances could permission be granted for them. Work in other people's households was only allowed from the age of 14 and was also subject to special conditions.
For work carried out in dependence on an employer, permission from the mother, father or other legal guardian was always required. Before the work was authorised, a medical examination had to be performed in each case to confirm the health and physical and mental capacity for the work to be carried out. Working hours could not exceed 6 hours a day and 30 hours a week. All children were guaranteed the right to social security, to which the employer had to pay the legally prescribed share of the wages.
In the case of work done on one's own account, the parents or other guardians were obliged to enable the child to attend school and to provide working conditions that allow the child to relax and participate in cultural and other leisure activities. The work was only allowed to be carried out until 10 pm at the latest. No further details were given on working hours. Under no circumstances may work be carried out which endangers the life, health, integrity or reputation of the child.
While these regulations did not eliminate the economic exploitation of children - this is neither possible with a law alone nor with international conventions - a legal framework was established which guaranteed working children that their rights would be respected and that they could defend themselves against rights violations. Despite all the difficulties that were expected to arise in the practical implementation, it must be recognised that an attempt was made to improve the situation of working children and in particular their protection. The work which children could have been allowed to do under this law would no longer have been work which is harmful to children. It is incorrect to state that the law "legalised child labour".
In a separate draft law from 2010, UNATSBO, the organisation of Bolivia's working children and youth, had declared: "The systematic denial of children's work seems to be primarily related to the interests of adults who want to globalise a single model of childhood. Thus, the working, indigenous, struggling, rebelling and organised child, which is ultimately part of the identity of entire peoples, seems to be seen as a threat to those who are interested in the disappearance of these diversities".
Difficulties in implementing the law
The law has triggered controversial international debates. In particular, the International Labour Organisation (ILO) described the law as incompatible with the ILO conventions on child labour and demanded that the parts relating to the work of children be amended. After resisting this demand for three years, the Bolivian government of Evo Morales gave in to pressure from the ILO, which was intensified by the US government, and amended the controversial parts of the law in December 2018 to the detriment of working children. This destroyed many hopes that had been placed in the law.
Even when the law was still in force, there were still some problems in authorising the work of children and youth. In the three years that the law was in force, only a few work permits had been issued. What are the reasons? On the one hand, the bureaucratic burden was probably too high, the equipment of the children's rights offices and the local offices of the Ministry of Labour responsible for authorisations was inadequate and the staff changed very often (sometimes for political reasons). Permits had to be issued individually for each child and required a detailed examination of their situation. Many forms had to be observed and filled in by various authorities and persons, by the children and their parents, by the health authorities, the schools and finally, in the case of dependent work, also by the companies.
It seems that some companies were unwilling to employ children and yoith under the conditions prescribed by the law. Above all, they wanted to have "no hassle". Firstly, they felt burdened by the bureaucratic procedures. Secondly, they seemed to have lost interest in employing the children and youth, as they then had to pay them the same salary as adult workers and, moreover, had to allow young people aged 15 and over to study for two hours a day during working hours. Here the state should have intervened actively by offering to grant subsidies to companies if they employ children and youth (under 18 years of age). This would have presupposed that the state actually had an interest in the legal employment of children and youth under dignified conditions. And that it had the necessary resources and would have been willing to provide them.
No less important would have been to create work and training alternatives for children and youth which meet the criteria of the Child and Youth Act for "legal" work and offer them better development opportunities beyond school attendance, or to restructure existing work situations in order to fulfil children's rights. The application of labour standards to children and youth (e.g. minimum wage, working hours) and the protection guarantees provided by the law were a first step in this direction. Although the law contained the promise and challenged to enable people who still have to live in great poverty in Bolivia to lead a dignified and satisfying life, working children should have been included as active subjects and their organisations recognised as "mediators".
The law was a political compromise that had to be fought against much resistance - including from the government, members of parliament and the public. Without the persistent pressure and persuasion of the children and youth of UNATSBO, it would probably not have come about. UNATSBO statements show that for the first time children saw themselves respected as working children and hoped that the law would provide them with better protection at work, an end to discrimination and an improvement in their living situation.
The particular significance of the law - also for other countries - was that it did not, as was previously customary, regard working children as mere "social cases" or objects of protective measures, but recognised them as social subjects who can actively contribute to the necessary social changes. Admittedly, this could only have been achieved to the extent that the country also freed itself from international economic dependence and produced economic forms and working conditions which correspond to the principles of a "good life" enshrined in the constitution.
The expectations and hopes that were associated with the law have ultimately been disappointed. Without public discussion and without consulting the working children and all the organisations and local government bodies that had been involved in the implementation of the law, the law was amended by parliament in December 2018 in a decisive manner in accordance with the ILO's guidelines. All legal protection mechanisms for the work of children under the age of 14 were removed without replacement, which amounts to a general ban. The provisions of the law and labour law guarantees are now completely limited to young people between 14 and 18 years of age. For the younger children, all that remains at the end of the law is to announce that they will be required to attend school and, by means of supervisory bodies, that they will be banned from work, relying on the authorities to be more sensitive to their protection.
The law was not free of shortcomings and the central government had been slow to implement it. Necessary resources for the implementation of the safeguard mechanisms were never made available. In order to enable children and youth to work in a way that respects their rights and guarantees their protection and human dignity, the law prescribed bureaucratic procedures that were difficult to fulfil in practice. And the child rights offices lacked the equipment and time to take care of the real protection of children.
Despite all this, numerous organisations and individuals in individual provinces had worked to overcome the bureaucratic hurdles and had committed themselves to implementing the law together with the children and youth concerned. They were and still are convinced that the law was better than anything that had previously existed in terms of legal regulations. It is disconcerting that the manifold experiences made during the four years were neither evaluated nor taken into account in the renewed decision-making process. And it contradicts the spirit of the UN Convention on the Rights of the Child, the Bolivian Constitution and the Children and Youth Act itself that the working children were not even heard. UNATSBO, the organisation of Bolivia's working children, had demanded in vain "to hear our voices, because we have a right to do so. No one can change laws that affect our interests without our participation".