Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

With reference to its observation, the Committee notes the information provided in reply to its previous comments. It notes in particular the activities undertaken with a view to the establishment of an inspection system based on appropriate legislation following the implementation of the MATAC/ILO project on the strengthening of labour administrations in Central American countries in 2002. The Committee notes that, according to the Government, the implementation of the project’s recommendations necessitates appropriate budgetary resources, the determination of a list of posts and the development of a training programme for labour inspectors. In addition, it is reported that a process of organizational and functional restructuring has been launched following a diagnosis on the labour inspection system with a view to making the operation of the labour inspection system more flexible, more effective and more professional. The Committee would be grateful if the Government would keep the ILO informed of the progress made in this process and if it would provide copies of any relevant legislation and documentation including, if possible, a copy of the diagnosis and the recommendations made.

Article 3, paragraph 1(b) and (c), of the Convention. Further to its previous comments, the Committee would be grateful if the Government would provide a copy of any legal text serving as a basis for the duties assigned to labour inspectors in relation to these provisions of the Convention.

Article 3, paragraph 2. Noting that, according to the Government’s report for the period ending 31 May 2001, labour inspectors are entrusted with the performance of certain administrative tasks, such as calculating the compensation and amounts payable to workers in the event of termination and drafting letters of resignation at the request of workers. The Committee requests the Government to indicate the manner in which it is ensured that the activities of labour inspectors are principally focused on the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, and that the performance of their additional duties is not such as to interfere with or prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers.

Article 6. The Committee notes that, according to the Government, labour inspectors are covered by either a contract without limit of time or for a specified period of one year. However, in accordance with this Article of the Convention, labour inspectors should benefit from a status and conditions of service such as to assure them of stability of employment. The Government is therefore requested to take measures to bring the law and practice into conformity with the Convention on this point that is essential for the continuity of service necessary for the discharge of the duties of labour inspectors, and to keep the ILO informed.

Article 8. Noting that the access of women and men to positions as labour inspectors is subject to the same criteria and that the sex distribution of the inspection staff is relatively balanced, the Committee once again requests the Government to provide information on the distribution by sex of the staff at the various grades.

Articles 10 and 21(c). The Committee notes with interest the substantial increase in the number of labour inspectors between 2000 and 2003 and the project to recruit nine additional inspectors in 2004. The Committee requests the Government to continue providing information on this subject, while at the same time indicating the proportion of inspectors discharging duties relating to the enforcement of legal provisions on safety and health conditions and those competent in other fields. The Government is also requested to provide information on the number and geographical distribution of workplaces liable to inspection under the terms of the Convention and on the number of workers covered.

Article 11. The Committee requests the Government to indicate the manner in which it is ensured that the sums allocated to labour inspectors, under the terms of Decree No. 53 of 5 June 1996, to cover their professional travel expenses, are adjusted so as to be adapted to fluctuations in the cost of living.

Article 12, paragraph 1(a) and (b). The Committee notes that, according to the Government, the rights and powers envisaged by these provisions of the Convention are granted to inspectors as a direct effect of its ratification. However, the Committee hopes that the Government will take the necessary measures to provide a national legal basis (amendment of the law, regulations, administrative instructions or other measures) with a view to facilitating the exercise and legitimizing these rights and powers in the eyes of those interacting with the labour inspectorate. The Government is requested to provide information on any development in this respect and, where appropriate, to provide copies of any relevant text.

Article 12, paragraphs 1(c)(ii) and 2. The Committee notes that, according to the Government, section 47 of the Act organizing and determining the functions of the labour and social security sector is not contrary to paragraph 1(c) of Article 12 of the Convention. It supports this point of view by referring to section 38(b) of the Act, which provides that the labour inspector may interrogate alone, or before witnesses, the employer, the workers of the enterprise and the trade union leaders on any matters relating to the application of legal provisions. The Committee nevertheless wishes to point out once again that the provisions of section 47 of the Act, under which it is clear that the presence of the employer or her or his representative alongside the inspector is compulsory during inspections, is not in conformity with the exercise of the investigatory powers of inspectors as set out by the Convention. Indeed, in accordance with paragraph 2 of Article 12, inspectors shall be authorized to be exempt from the obligation to inform the employer or her or his representative of their presence in the workplace during an inspection where they consider that such notification may be prejudicial to the effectiveness of the inspection. The Government is therefore once again requested to take the necessary measures to amend the legislation accordingly and to keep the ILO duly informed.

Article 14. According to the information provided by the Government in its previous reports under this Convention and on Convention No. 129, the national legislation does not provide for the notification of industrial accidents or cases of occupational disease to the labour inspectorate, but to the general directorate of social insurance, which includes inspectors responsible for supervising occupational safety and health conditions and prevention at work. This notification is carried out for certain industrial accidents and cases of occupational diseases for all sectors together. Emphasizing, as it did in paragraph 86 of its 1985 General Survey on labour inspection, the importance of the notification of industrial accidents and cases of occupational diseases to the labour inspectorate with a view to the prevention of occupational risks, the Committee would be grateful if the Government would take measures rapidly to ensure that the relevant information is brought to the knowledge of the inspection services.

Article 17, paragraph 2. The Committee would be grateful if the Government would indicate whether it is left to the discretion of labour inspectors whether to give warning and advice instead of instituting or recommending proceedings. If not, the Government is requested to take measures to this end.

Article 18. With reference to its previous comments, and noting that the Government has not reported any development designed to ensure that financial penalties maintain the dissuasive nature that is indispensable to achieve compliance with the law, particularly in inflationary situations, the Committee once again requests the Government to envisage ensuring that measures are taken to put in place a sufficiently flexible and rapid procedure for the adjustment of the amounts of such penalties.

Articles 20 and 21. With reference to its previous comments and noting the hope expressed by the Government that it will be in a position to ensure the application of these two provisions, setting out the obligation of the central inspection authority to publish and communicate to the ILO an annual inspection report containing the information required by Article 21, the Committee draws the Government’s attention to the dual interest of such a report.

From the national point of view, an annual report is essential to assess the practical results of the activities of the labour inspectorate. It enables the national authorities to have at their disposal meaningful data on the application of the labour legislation and any of its shortcomings, from which they can draw useful lessons for the future. The publication of an annual report should also provide information to employers and workers and their organizations and elicit their reactions in a constructive spirit.

From an international point of view, the communication of such a report to the ILO, within the time limits set out in Article 20, is notably intended to enable the ILO’s supervisory bodies to follow developments relating to the application of the Convention and to provide useful guidance to assist the efforts made by member States with a view to progressively raising the level of achievement of the social objectives pursued by the instrument.