Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Labour Inspection Convention, 1947 (No. 81) - Ecuador (Ratification: 1975)

Other comments on C081

Observation

Direct Request

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The Committee notes the observations of the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC), received on 24 January 2020 and 30 August 2022, and the joint observations of ASTAC and the Ecuadorean Confederation of Unitary Class Organizations of Workers (CEDOCUT), received on 1 October 2020, on the application of this Convention. The Committee also notes the joint observations of the Ecuadorian Confederation of Free Trade Unions (CEOSL), the Ecuadorian Federation of Municipal and Provincial Workers (FETMYP), the National Federation of Education Workers (UNE) and the National Ecuadorian Federation of workers of provincial governments (FENOGOPRE), received on 1 September 2022 on the application of the Convention.

Technical assistance. The Committee recalls that, in December 2019, the Office carried out, at the request of the Government, a technical assistance mission, and that a road map was submitted to the tripartite constituents in order for a tripartite dialogue to be initiated with a view to adopting measures to address the comments of the ILO supervisory bodies. The Commission notes that the road map included a point on the strengthening of the labour inspectorate. The Committee requests the Government to provide information on the progress made in the implementation of the road map with regard to the strengthening of the labour inspectorate.

Article 3 of the Convention. Functions of labour inspectors in the area of conflict resolution. The Committee notes the information provided by the Government, in its report, on the functioning of the Labour Mediation Centre. It notes, in particular, the adoption of Ministerial Decision No. MDT-2019-157, published in Official Journal No. 89 of 27 November 2019, which adopts the regulations governing the operation of the Labour Mediation Centre of the Ministry of Labour, thus repealing the previous regulations governing its operation, which were established pursuant to Ministerial Decision No. MDT-2015-0078 of 15 April 2016. However, the Committee notes that the Government’s report does not indicate whether all labour inspectors, including those working in more remote areas, have been relieved from duties relating to the settlement of labour disputes. In their joint observations, CEOSL, FETMYP, UNE and FENOGOPRE indicate that, in August 2022, there were only five labour mediators, and that, in most of their cases, it was impossible to reach an agreement. The Committee once again requests the Government to indicate whether all labour inspectors, including those working in more remote areas, have been relieved from duties relating to the settlement of labour disputes.In the case where labour inspectors continue to perform mediation duties, the Committee also requests the Government to adopt the necessary measures to ensure that, in accordance with Article 3(2), no other duty assigned to labour inspectors interferes with the effective discharge of their primary duties or prejudices in any way the effective discharge of these duties.

Article 4. Organization and effective functioning of the system of labour inspection. Supervision and control of the system by the central authority. The Committee notes that the Government indicates once again that the Regional Directorates are placed under the Ministry of Labour, which will approve their regulations, rules, projects and work plans. While noting the lack of information in this respect, the Committee requests the Government to provide detailed information on the measures adopted or envisaged to ensure the provision of strategic support by the central authority for labour inspectors, and the uniformity of criteria for conducting inspections.

Article 12(1)(c) Powers of labour inspectors. The Committee notes that, in reply to its previous comment, the Government refers to sections 542 and 545 of the Labour Code, which establish the powers of inspectors. The Committee notes once again that these sections do not provide for the authority of inspectors to take or remove, for purposes of analysis, samples of materials and substances used or handled in the establishment, subject to the employer or the employer’s representative being notified of any samples or substances taken or removed for such a purpose. The Committee therefore requests the Government to take the necessary measures to ensure the application of Article 12(1) (c)(iv), of the Convention.

Article 12(1) and Article 15(c).Inspections without prior notice.Confidentiality of the source of complaints. The Government indicates that targeted inspections are based on complaints made by workers, submitted through the National System of Control of Inspectors SINACOI. In this case, an inspector shall verify the information contained in the complaint and determine any violations, using the computer systems of the Ministry of Labour with the objective of verifying the non-compliance with labour rights. Without prejudice to virtual validation, the labour inspector shall undertake a field inspection of the natural or legal person to verify the grounds of the request or complaint, within a period of five days. The labour inspector shall notify the natural or legal person of the case of non-compliance and shall proceed to convene a hearing in order to for the notified cases of non-compliance to be demonstrated or justified. Regarding confidentiality requirements, the Committee notes the Government’s indication that labour inspectors are required to keep confidential the source or submission of any complaints or allegations of labour non-compliance under section 66(19) of the Constitution. While noting that targeted inspections require employers to be notified of the cases of non-compliance identified as the result of a complaint, the Committee requests the Government to indicate the measures adopted to ensure that labour inspectors treat as strictly confidential the source of any complaints bringing to their notice a defect or breach of legal provisions,and that they give no intimation to the employer or the employer’s representative that a visit of inspection was made in consequence of the receipt of such a complaint, in accordance with Article 15(c) of the Convention.

Article 13. Preventive functions of labour inspection. The Committee notes that the Government refers once again to the fact that labour inspectors who carry out inspection visits related to guaranteeing adequate occupational safety and health conditions, are empowered to make pertinent recommendations related to changes in the structure or installation of the enterprise. The Government also reiterates that, in case of irregularities, the inspector shall issue a notification or a warning of penalties which allows enterprises to rectify the non-compliance detected. Referring to its observation on Articles 12 and 17 of the Convention,the Committee once again requests the Government to specify the legal provisions that give effect to Article 13 of the Convention, which establishes that labour inspectors shall be empowered to take steps with a view to remedying defects observed in plant, layout or working methods which they may have reasonable cause to believe constitute a threat to the health or safety of the workers. The Committee also requests the Government to provide information on the number and nature of the preventive measures adopted by the labour inspectorate.

Article 15(a). Direct or indirect interest in enterprises under the supervision of inspectors. Concerning obligations of an ethical nature, the Committee notes that the Government refers to section 545 of the Labour Code and indicates that: (i) it is prohibited for labour inspectors to have any direct or indirect interest in the enterprises that were inspected; and (ii) in the case of non-compliance with this requirement, the disciplinary regime established in section 41 of the Basic Public Service Act shall apply to such inspectors. However, the Committee notes that section 545 does not specifically prohibit labour inspectors from having a direct or indirect interest. The Committee also refers to the comments made in its observation, in which it notes the observations of the social partners alleging acts of corruption. Consequently, the Committee requests the Government to indicate the measures adopted or envisaged to give effect to Article 15(a), with the aim of ensuring that inspectors do not have any conflict of interest, whether direct or indirect, in the enterprises under their supervision.

Article 18. Adequate and effectively enforced penalties. In its observations, ASTAC and CEDOCUT indicate that, currently, the labour inspectorate does not have a regulatory framework that enables it to ensure full respect of labour rights. In accordance with the 2019 “facts and figures” report, 26,915 inspections were conducted and only 2,505 resulted in some form of penalty. Furthermore, ASTAC and CEDOCUT state that fines for the failure to pay the 13th- and 14th-month salary were reduced by less than half for the majority of offences committed by natural persons, in accordance with Ministerial Decision No. MDT-2017-0110. In this regard, the Committee notes ASTAC and CEDOCUT’s indication that these fines are not proportionate to the damage caused and that they undermine the effectiveness of the work of inspectors, as employers prefer to pay the fine rather than comply with their obligations. The Committee requests the Government to provide information on the application of adequate penalties for violations of legal provisions that may be applied by labour inspectors, and to provide information on the number and amount of the penalties imposed by labour inspectors.