Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes with satisfaction the adoption on 23 December 2008 of Mexican Official Standard NOM-032-STPS-2008 concerning safety in underground coalmines. Noting that, according to the Government, this standard reflects provisions laid down in the Safety and Health in Mines Convention, 1995 (No. 176), the Committee hopes that this would pave the way for a ratification of that Convention. The Committee invites the Government to provide information on any developments in these respects.

Follow-up of measures taken pursuant to the recommendations adopted by the Governing Body in document GB.304/14/8. Representation concerning an accident in the Pasta de Conchos Mine in 2006. The Committee notes that in March 2009 the Governing Body adopted a report on a representation alleging non-observance by the Government of certain Articles of this Convention, of the Labour Administration Convention, 1978 (No. 150), and of the Chemicals Convention, 1990 (No. 170). It notes that in paragraph 99 of the abovementioned report, the Governing Body made recommendations and entrusted the Committee with the task of following up the issues raised in the report. The Committee notes the report sent by the Government containing information on the measures taken to follow up on these recommendations, which is examined below.

I. Measures to be adopted in consultation with the social partners

Articles 4 and 7 of the Convention. National policy and reviews, either overall or in respect of particular areas. The Committee notes that in paragraph 99(b) of its report, the Governing Body invited the Government, in consultation with the social partners, to continue to take the necessary measures in order to:

(i) ensure full compliance with Convention No. 155, and, in particular, to review and periodically examine the situation as regards the safety and health of workers, in the manner provided for in Articles 4 and 7 of Convention No. 155, with particular attention given to hazardous work activities such as coalmining. The Committee notes that according to the Government’s report, the National Advisory Committee on Occupational Safety and Health (COCONASHT) and the 32 state advisory committees on occupational safety and health (COCOESHT) have held many meetings since 2007. From the web site of the advisory committees (COCOSHT), referred to by the Government, the Committee notes the 2009 work programme, which includes legislative and training activities to be carried out. It notes that the programme provides for activities in the following areas: (1) establishment of a national OSH system; (2) modernization of the regulatory framework for OSH; (3) enhancing the OSH self-management system; (4) development of the national system of information on occupational accidents and diseases; (5) strengthening the machinery for consultation and risk prevention; (6) promoting specialized technical training on OSH; and (7) promoting a review of compliance with safety and health obligations. The Committee requests the Government to continue to provide information on any developments concerning the review and periodical examination of the situation as regards the safety and health of workers as provided in Articles 4 and 7 of the Convention, with particular attention given to hazardous work activities such as coalmining.

(ii)    Concluding and adopting a new regulatory framework for OSH in the coalmining industry, taking into account the Safety and Health in Mines Convention, 1995 (No. 176), and the ILO code of practice on safety and health in underground coalmines, 2006. The Committee notes that, according to the Government, the newly adopted NOM-032-STPS-2008 lays down limits and specifications that are even stricter than some of the existing regulations governing the mining industry in other countries and that it was drafted with ILO cooperation. The Committee requests the Government to provide detailed information on how NOM-032-STPS-2008 is applied in practice.

Article 9. An adequate and appropriate system of inspection. The Committee notes paragraph 99(b)(iii) and (iv), and (d) of the Governing Body’s report in which the Government is invited, in consultation with the social partners, to take the necessary measures in order to:

(iii)  ensure, by all necessary means, the effective monitoring of the application in practice of laws and regulations on occupational safety and health and the working environment, through an adequate and appropriate system of labour inspection, in compliance of Article 9 of Convention No. 155, in order to reduce the risk that accidents such as the accident in Pasta de Conchos occur in the future;

(iv)  monitor closely the organization and effective operation of its system of labour inspection taking due account of the Labour Administration Recommendation, 1978 (No. 158), including its Paragraph 26(1).

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(d)   review the potential that the Labour Inspection Convention, 1947 (No. 81), provides to support the measures the Government is taking in order to strengthen the application of its laws and regulations in the area of occupational safety and health in mines.

The Committee notes that according to the Government, the Federal Labour Inspectorate has carried out special labour inspection operations, and in January 2007 a programme was devised and a total of 52 inspections were conducted in 26 workplaces showing a rate of compliance with standards of safety and health and general conditions of work of 86.08 per cent. It also notes that since the entry into force of NOM-032-STPS-2008 on 23 March 2009, a special operation has been started up for underground coalmines and by 30 June 2009, 11 such mines had been inspected and 1,113 safety and health measures had been ordered. In order to improve the functioning of the labour inspectorates, a training course was held and inspectors have been provided with personal protection equipment. The Government also indicates that in line with the provisions of the Labour Administration Recommendation, 1978, (No. 158), the General Directorate of Federal Labour Inspection carried out visits to every one of the federal delegations in order to ascertain that inspection policies, guidelines and criteria are being properly applied. The Committee points out that the Governing Body’s recommendations on the labour inspection system stem from the findings in paragraphs 75–85 of the Governing Body’s report on the accident in the Pasta de Conchos mine which cost 65 miners their lives, where the Governing Body found that the labour inspectorate had failed to satisfy itself that the defects noted had been set right (lighting, dusting, risk plans, etc.). The Committee notes that paragraph 99(b)(iii) and (iv), the application of which it is examining, and 99(d), refers to measures the Government should adopt in consultation with the social partners, and observes that the Government’s report contains no indication of any such consultation. It accordingly asks the Government to continue to provide information on the measures taken – in consultation with the social partners – pursuant to paragraph 99(b)(iii), (iv) and (d) of the abovementioned recommendations, and also on the following matters, likewise in consultation with the social partners:

–            its strategy for ensuring that the labour inspectorate improves the monitoring of effective compliance with the recommendations it makes where defects are noted, particularly in the coalmining industry;

–            statistical information showing the extent to which the labour inspectorate’s recommendations are observed;

–            main areas in which NOM-032-STPS-2008 improves on the former standard (NOM-023-STPS-2003) in terms of monitoring and verification with a view to ensuring greater safety for mineworkers;

–            extent to which the conformity assessment procedure set forth in paragraph 18 of NOM-032-STPS-2008 is applied, and details of its application in practice;

–            an appreciation of the real impact of the measures indicated in terms of improving the situation in the coalmining industry.

Furthermore, the Committee asks the Government to provide information on the measures taken in application of the recommendation formulated in paragraph 99(b)(iv) of the Governing Body’s report on labour inspection in its next report on the application of the Labour Administration Convention, 1978 (No. 150), to be examined at the Committee’s next session.

II. Other measures

Compensation. The Committee notes that in paragraph 99(c) of its report, the Governing Body invited the Government to:

(c) ensure, considering the time that has lapsed since the accident, that adequate and effective compensation is paid without further delay, to all the 65 families concerned and that adequate sanctions are imposed on those responsible for this accident.

The Committee notes that the information supplied by the Government is largely a repetition of the information it sent in reply to the assertions made in the representation which is set out in paragraph 51 of the Governing Body’s report. The Committee also refers to the report’s conclusions, paragraph 93, according to which:

Concerning the assistance and compensation due and paid to the families of the deceased miners, the Committee notes that there appears to be a significant discrepancy between the compensation allegedly offered by IMMSA immediately after the accident (750,000 pesos per family) and the compensation agreed upon between IMMSA and the STPS. The Government stated that a total amount of 5,250,000 pesos, corresponding to the benefits due, was deposited by IMMSA with the JFCA on 18 February 2008 to be distributed among the beneficiaries according to their individual entitlement and that PROFEDET would make the necessary arrangements for the corresponding payments to be made immediately. The Committee notes that, according to the Government, 51 families of the dead miners were to receive a total compensation of 5,250,000 pesos without prejudice to their pursuit of legal action. This amount was extended to include all 65 families. The Government did not, however, provide specific information concerning the basis for, or the elements taken into account in, arriving at that sum. The Committee requests further information to be provided by the Government to the Committee of Experts on the Application of Standards on the modalities for determining the compensation provided to the 65 families of the deceased miners and expects the Government to ensure that all the 65 families receive adequate and effective compensation in accordance with national law.

The Committee accordingly asks the Government to provide detailed information on:

(1)   Compensation to be paid by the Industrial Minera Mexico SA (IMMSA):

–      the manner in which compensation was determined (for example whether wage supplements were counted and, if so, which);

–      the criteria for changing the amount between IMMSA’s first offer, which was equivalent to 10 years’ pay according to paragraph 26 of the report, and the later sum, which was lower;

–      the manner in which compensation was provided for the 14 families concerning which the Government provides no information and the status of the claims under way regarding compensation to the 65 families.

(2)   State support and assistance. Information on any support and assistance by the State for the 65 families of the miners who lost their lives, such as that referred to in paragraph 26 of the report (accommodation, grants for education up to degree level for children and monthly allowance).