Observación (CEACR) - Adopción: 2007, Publicación: 97ª reunión CIT (2008)

The Committee notes the information supplied by the Government on the impact that the earthquake which took place last August in its country has had on its capacity to submit its reports. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous observation, which read as follows:

The Committee notes the information provided by the Government in its report and the attached documents, with particular reference to Supreme Decree No. 018‑2006-TR of 28 October 2006, amending the Regulations establishing the organization and functions of the Ministry of Labour and Employment Promotion, General Act No. 28806 of 19 July 2006 on the labour inspectorate and Decree No. 019/2006-TR of 28 October 2006 issuing regulations under the General Act on the labour inspectorate. The Committee also notes the new observations made by the Union of Labour Inspectors of the Ministry of Labour and Employment Promotion (SIT), received by the Office on 20 September 2005 and forwarded to the Government on 11 October 2005. The observations made by the Trade Union of Fishing Boat Masters and Owners of Puerto Supe and Associates (SCPPPSA), received by the Office on 3 December 2004 and 28 January 2005 and forwarded to the Government by letters dated respectively 17 December 2004 and 25 July 2005, are examined under the Shipowners’ Liability (Sick and Injured Seamen) Convention, 1936 (No. 55).

With regard to the observations made in 2005 by the SIT, the Committee notes that it reiterates in part the issues raised in an observation made in 2003, namely the numerous problems confronting the labour inspectorate, particularly the lack of support and commitment by the public authorities and the criticisms made by the social partners.

1. Lack of support and commitment by the authorities responsible for labour inspection. The SIT refers, among other matters, to the lack of the resources required for the operation of the labour inspectorate, in terms of infrastructure, equipment, transport facilities and the lack of consideration by the responsible authorities, resulting in pressure and unjustified victimization. Furthermore, the conditions of service of the majority of labour inspectors do not offer them any prospect of career promotion, and the level of their remuneration is clearly lower than that of their colleagues, and lower than for similar functions in other departments of the public service. The SIT provided documents containing comparative figures in this respect. It adds that a collective agreement negotiated by the SIT and the Ministry for 2004-05 was not applied in good faith by the latter. The SIT refers to a clause on the allocation of the professional travel expenses of inspectors and the delay in reimbursing their food and accommodation costs, with the arrangements failing to take into account necessary expenses on long-distance travel. The Committee notes that this agreement covers salaries, seniority allowances, the professional travel expenses of inspectors, the exercise of trade union activities and prospects to ensure against the risks related to the profession of inspector, training and temporary detachments to other units. However, from the viewpoint of the SIT, the Ministry, as employer, does not guarantee labour inspectors the conditions of service and stability envisaged in Article 6 of the Convention, nor decent working conditions. However, the SIT emphasizes that labour inspectors hold university diplomas of a fairly high level, are committed to solid moral and ethical principles and demonstrate professionalism and independence. It regrets that the requirement of dedication to one profession imposed on labour inspectors is not accompanied by salaries enabling them to live decently, in view of the importance of their responsibilities, and particularly the extension of their competence under the terms of section 1 of Act No. 28292 of 2004.

The Committee notes that the Government has not replied to the issues raised relating to the conditions of service and of work of labour inspectors. However, it notes with interest that Act No. 28806 of 2006 contains numerous provisions intended to guarantee labour inspectors a status and conditions of service that are in accordance with the requirements of the Convention. Section 26 of the Act provides that the system for the selection and the legal status of inspectors in the labour inspection system shall be governed by specific texts or the provisions applicable to the public service and administrative careers. These texts shall establish the legal status, conditions of service, remuneration, exclusivity of functions, transfer, promotion, classification of posts, termination of employment and disciplinary regime. The Act also establishes the conditions for recruitment and appointment in the inspectorate and the trial period for the various categories of inspection officials. The Committee notes in particular with interest that the means of ascertaining the aptitude of candidates to the profession shall be determined by the central authority of the labour inspection system (Article 7, paragraph 2) and that, in accordance with section 27, labour inspectors shall be obliged to participate in annual programmes of initial training and further training courses. Furthermore, under the terms of section 26, officials discharging inspection functions are ensured of employment stability and may not sanctioned, terminated or transferred for reasons other than a professional fault. The disciplinary procedure must be of an adversarial nature, which implies the hearing and participation of the official concerned.

The Committee hopes that the Government will not fail to provide rapidly the texts issued under the above provisions of the Act and that it will supply information on any action taken by the Minister for the Economy and Finances as a result of the conclusions of the technical and market studies which, according to the SIT, have been submitted to it for examination with a view to improving the salaries of inspectors.

With reference to the SIT’s observation, communicated to the Office in 2003, according to which inspectors are not protected against acts of aggression committed against them, the Committee notes that the Government has still not provided, as it indicated it would, copies of the correspondence that it stated it had addressed to the police authorities for this purpose. It requests the Government to provide the above copies with its next report.

2. Article 16. Coverage of the labour inspection system and priority establishments. The Committee notes that, according to the SIT, employers complain that inspections tend to target large and medium-sized formal enterprises and that a repressive approach is adopted. Workers’ organizations are reported to have expressed the hope that the inspectorate’s database would be extended to enterprises that are not inspected so as to ensure compliance with the labour legislation. According to the SIT, analysis of the inspections carried out shows that they are generally undertaken based on the interests of the responsible authorities, and therefore cover certain categories of enterprises, but that there is no strategic planning involved. The Committee notes that the Government has not provided comments on the trade union’s allegation concerning the methods of designating the workplaces to be inspected and the manner in which it is ensured that such inspections are unannounced and undertaken without previous notice, as required by Article 12, paragraph 1, of the Convention.

3. Articles 6 and 11, paragraph 1(b). Independence of labour inspectors and the provision of transport facilities. With reference to its previous comments, the Committee notes the Government’s indication that the use of means of transport belonging to employers to convey inspectors to remote workplaces only occurs occasionally. However, it notes with concern that this is a practice indicated by ten of the 24 regional divisions questioned on this point and that, in one of these divisions, in cases where inspections are carried out at the request of one party, they are financed to the level of 98 per cent by that party. The Committee therefore notes with interest that section 19 of the Regulations issued under the General Act on labour and the protection of workers of 2001, which authorized the labour inspectorate to have recourse to means of transport belonging to employers, workers or third parties concerned to undertake inspections in remote workplaces, was repealed by the General Act on labour inspection No. 28806 of 19 July 2006. It would be grateful if the Government would indicate the measures through which it is envisaged that inspectors will have the necessary means of transport available for the discharge of their functions.

4. Article 12. Right of inspectors to enter workplaces freely. With reference to its previous observation, the Committee notes with interest that, by virtue of section 13(2) of Decree No. 019 issued under the abovementioned Act, the labour inspector is not obliged to postpone the inspection when one of the parties is absent and that the inspection may proceed without prejudice to its validity. It also notes with satisfaction that, under the terms of section 5(1) of the above Act, the inspectors are also authorized, in accordance with Article 12, paragraph 1, of the Convention, not to notify the employer or her or his representative of their presence where they consider that such notification may be prejudicial to the effectiveness of the inspection. The Committee noted with interest in its previous observation certain amendments made to the legislation that previously covered the right of entry of inspectors into workplaces liable to inspection, while emphasizing that there nevertheless remained contradictions on certain matters in relation to the requirements of the Convention. This is still the case as, under the terms of section 10 of the Act of 2006 referred to above, all inspections are subject to a mission order from the responsible authority, including those based on a complaint or a request for information or technical advice. Contrary to the explanations provided by the Government in its report, there is therefore no exception to the principle of prior authorization, as this provision reiterates the requirement for a mission order not only for programmed inspections and those covering a specific field, but also for all inspections. As a result, inspectors never have the initiative of their action. Emphasizing the negative impact of the various restrictions placed in certain countries on the right of entry of inspectors on the effectiveness of their action, the Committee once again indicated in its 2006 General Survey on labour inspection that these restrictions in law or in practice can only stand in the way of achieving the objectives of labour inspection as set out in the instruments and that they are not in conformity with the Convention. It therefore urged the governments of the countries concerned to take the necessary measures to eliminate them in law and in practice (paragraph 266). With regard in particular to inspections resulting from a complaint, the Committee considers that the principle that they should be subject to a mission order is contrary to the principle set out in the Convention that the labour inspector should be prohibited from revealing to the employer the reason for the inspection. The Committee therefore hopes that the Government will not fail to take measures to amend the relevant legislation to bring it into conformity with the Convention on this essential point and to ensure that labour inspectors are henceforth empowered to enter freely workplaces liable to inspection, under the terms and conditions set out in Article 12.

5. Articles 10, 11 and 20. Financing the human, material and logistical resources necessary for the effective operation of labour inspection and preparation of an annual inspection report. With reference to its previous observation, in which it noted that a multinational cooperation project had been launched to strengthen labour administrations in the countries of the region (ILO/FORSAT), the Committee notes with interest, according to information provided recently by the ILO Regional Office, that a new information system on labour inspection is being established. This system should make it possible to provide the Office with detailed statistics. The Committee also notes that, in accordance with the General Act on labour inspection of 2006, the Ministry of Labour and Employment Promotion, regional governments and the competent public administration agencies will ensure that the labour inspection system has at its disposal, sufficient human resources, offices, premises, materials and equipment. Where there are no appropriate public means of transport, the necessary means of transport will be provided and travel and other incidental expenses arising from the discharge of their inspection functions will be reimbursed, in accordance with the provisions of the Convention. The Committee however notes that, under the terms of the final and transitional provisions of the Act (point 5), the scale of remuneration of labour inspectors whose employment relationship is governed by private law will only be modified in accordance with the availability of the corresponding budgetary allocations. It requests the Government to provide information on the budgetary provisions adopted or envisaged to give full effect to this provision and to indicate whether it is explicitly planned to harmonize the status of labour inspection personnel so as to secure for all inspectors the guarantees provided for in Article 6 of the Convention.

The Committee is addressing a request directly to the Government on certain matters.