Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Labour Inspection Convention, 1947 (No. 81) - Colombia (Ratification: 1967)

Other comments on C081

Observation

Direct Request

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Referring to its observation, the Committee wishes to raise the following additional points.

The Committee notes the detailed information provided by the Government in its report in response to the Committee’s previous requests, including the information on: the activities of the labour inspectorate with regard to prohibited forms of labour intermediation, the relevant penalties imposed and the establishment of a large number of formalization agreements by which workers were brought into the formal sector (Articles 2 and 3(1) of the Convention); the comprehensive training provided to labour inspectors and the development of relevant technical manuals and instruments (Article 7(3)); the legislative provisions setting out the preventive functions of labour inspectors and their powers of injunction, particularly in the event of imminent danger to the health or safety of workers (Articles 3(1)(b) and 13); and (iv) the legislative provisions requiring the notification to the labour inspectorate of industrial accidents and cases of occupational disease (Article 14).

Article 3(2) of the Convention. Additional duties of labour inspectors. The Committee notes the indications by the Confederation of Workers of Colombia (CTC) and General Confederation of Labour (CGT) that labour inspectors are assigned additional tasks, such as administrative functions, at the expense of their primary tasks. According to the Single Confederation of Workers of Colombia (CUT), labour inspectors spend more time on conciliation than on their primary functions. In this regard, the Committee understands from the Government’s explanations that, in accordance with Administrative Decisions Nos 404 of 22 March 2012 and 2143 of 28 May 2014, the functions of labour inspectors depend on the group in the territorial directorates to which they are assigned, and that they can be assigned either the tasks of: (i) prevention, inspection, monitoring and control; (ii) conciliation and the resolution of individual and collective conflicts; or (iii) customer service and administrative procedures. It notes the Government’s indication that labour inspectors entrusted with the functions of prevention, inspection, monitoring and control are not entrusted with any additional functions. The Committee asks the Government to state clearly the number of inspectors who are exercising the functions of prevention, inspection, monitoring and control in practice, i.e. functions within the meaning of Article 3(1) of the Convention.

Articles 6 and 7(1). Status of labour inspectors as public servants and their permanent appointment on the basis of competitions testing their aptitudes. The Committee notes the Government’s indication that, of the 696 labour inspectors currently working at the labour inspectorate, 102 labour inspectors are public servants covered by the administrative career system, while 594 labour inspectors currently hold temporary contracts. While the latter do not enjoy full employment stability, they have relative employment stability, in accordance with relevant judgments handed down by the Constitutional Court in 2008 and 2013. The Committee notes the Government’s reference to the reasons given by the Court, according to which there are only limited grounds on which public servants with temporary contracts can be removed from their posts including: their replacement by successful candidates following merit-based competitive exams, their dismissal as a disciplinary sanction for professional misconduct, and inadequate performance (based on written evidence, which can be contested by the official). The Government indicates that the Ministry of Labour is aware of the need to appoint all labour inspectors to posts covered by the public career system following merit-based competitive exams and has therefore initiated the relevant procedures to conduct such competitions to fill the vacant posts. In this context, the Committee also notes the observations made by the CUT and CTC that, as labour inspectors are not appointed following competitive exams, they can be removed from their posts at any time (according to the CUT, 55 labour inspectors were dismissed from their posts in 2012, and 48 in 2013). In this regard, the Committee also notes the indications of the CUT that, even though an investment is made in the training of labour inspectors, labour inspectors do not stay long in the labour inspectorate and often end up working in the private sector. The CUT adds that the qualifications required for labour inspection posts are minimal. The Committee welcomes the initiation of measures by the Government to conduct merit-based competitive exams and trusts that the Government will not fail to proceed with the appointment of all labour inspectors on a permanent basis so as to ensure their stability of employment and to ensure that they are independent of changes of government and any improper external influences. Please also provide detailed information on the recruitment procedures used to test the aptitude of candidates, and provide information on the qualifications required for labour inspection posts.

Articles 11 and 12(1)(a). The reimbursement of travel costs and the effect given in practice to the principle of the freedom of labour inspectors to enter any workplace liable to inspection. The Committee notes that the Government has not provided a reply to the previous observations made by the CUT and the CTC concerning the requirement for previous authorization from the territorial directorates for the reimbursement of travel expenses, which the Committee inferred might be an obstacle to or restriction on the principle of freedom of labour inspectors to enter any workplace liable to inspection, as provided for in Article 12(1)(a). The Committee once again asks the Government to provide information on the application in practice of the right of labour inspectors to enter workplaces liable to inspection freely, without prior authorization (Article 12(1)(a)).

Articles 3(1)(a) and (b), 5(a), and 17 and 18. Preventive activities of the labour inspection services and the effective enforcement of sufficiently dissuasive sanctions for labour law infringements. The Committee notes the information provided on the activities carried out by the labour inspectorate concerning prevention (such as inspection visits in workplaces with a high risk of non-compliance, promotional activities resulting in workplace improvement agreements, numerous awareness-raising campaigns, joint activities with the social partners, campaigns in the informal economy, etc.).

With regard to the measures taken to ensure the deterrent effect of sanctions and their effective enforcement, the Committee notes with interest the Government’s indications concerning the increase in the amounts of fines and penalties for a number of labour law infringements (concerning freedom of association and collective bargaining, labour intermediation, occupational safety and health, etc.) in the national legislation in recent years and the strengthening of the relevant enforcement mechanisms, including the collection of fines. In this context, the Committee notes, for example, that: (i) the 2013 Code of Administrative Procedure and Litigation provides for more expedient administrative procedures (a reduction in the time within which decisions have to be taken from 3-4 years to less than nine months); (ii) Administrative Decision No. 2123 of November 2013 provides that appeals against administrative acts imposing fines have no suspensive effect; (iii) the initiation of a reform project foreseeing, on a transitional basis, the establishment of three additional “decongestion chambers” to assist the Labour Chamber of the Supreme Court to respond to the increased number of pending cases; and (iv) the designation of specialized personnel at the regional level for the collection of fines and the development of a plan to strengthen the relevant procedures. In this regard, the Committee also notes that, during 2013–14, 1,759 inspection visits have been carried out, and that in 1,782 cases penalties have been issued and enforced, resulting in fines amounting to 58,139.772.821 pesos (approximately US$30.6 million). The Government further indicates that the training of labour inspectors in the framework of the ILO project entitled “Promoting compliance with international labour standards in Colombia” has had the impact of improving the capacity of labour inspectors to investigate cases and impose the appropriate level of penalties (such as in the area of freedom of association), including through the harmonization of the relevant criteria (numerous guidelines and a comprehensive manual provide guidance for labour inspectors in this respect). The Committee also notes that, according to the CUT, both the preventive and enforcement activities of the labour inspectorate are insufficient, and that labour inspectors issue less than one sanction for non-compliance per month. According to the CTC, it is necessary to ensure that the fines imposed are also collected.

Concerning the measures taken for effective cooperation with the judicial authorities, the Committee also notes the Government’s indication, that: (i) the Ministry of Labour has been provided with free access to information on court decisions, contained in the so-called LEGIS information system; (ii) court decisions of high relevance are communicated to different government bodies, including the labour inspectorate; and (iii) judges have been provided with training by the ILO and the Ministry of Labour, based on a practical guide on how to proceed in the case of administrative actions relating to violations of freedom of association. The Committee requests the Government to provide information on the impact of the above measures (including the improvement made in the collection of fines issued by labour inspectors) and hopes that the Government will soon be in a position to provide detailed statistics on the number of violations detected and the penalties imposed, if possible aggregated by reference to the relevant legal provisions, and to ensure that this information is included in the annual reports of the labour inspection services.

Articles 20 and 21. Elaboration, publication and communication to the ILO of annual labour inspection reports. The Committee notes with interest the national labour inspection report for 2013. According to the Government, this report is an initial approximation of future annual reports and contains, among other things, information (disaggregated by economic sector) on: (i) a list of the legislation concerning labour inspection; (ii) the number of labour inspectors and their geographical distribution; (iii) the number of enterprises subject to labour inspection; (iv) the number of workers and self-employed workers; (v) the number of inspection visits conducted; (vi) the number and the amount of the fines imposed; and (vii) the number of occupational accidents and of cases of occupational disease. The Committee trusts that the Government will take the necessary measures for the publication of this report. Furthermore, the Government hopes that subsequent annual reports on the work of the labour inspection services will also include statistics on violations detected (with reference to the relevant legal provisions) and that future reports will be regularly communicated to the ILO.

Articles 22 et seq. Part II of the Convention. Labour inspection in commerce. The Committee notes the Government’s indications that labour inspection in the country is not limited to certain economic sectors, but covers all workplaces in the industrial, agricultural, commercial and informal sectors. The Government indicates that it will respond to the request made by the Committee to provide information on the conclusions reached by the Subcommittee on International Affairs for the Labour Sector concerning the acceptance of Part II of the Convention on a system of labour inspection in commercial workplaces, which will also be submitted to the Standing Committee on the Negotiation of Wages and Labour Policies once the conclusions have been adopted. The Committee requests the Government to provide information on any developments in this regard.